ML18215A066

Compilation of FRN Notices (Prior to 1996). Title 10 - Chapter 1, CFR Parts 0 - 49. Vol III

ML18215A066
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Issue date:	12/31/1996
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{{#Wiki_filter:UNITED STATES NUCLEAR REGULATORY COMMISSION Rules and Regulations Title 1O - Chapter 1 CODE of FEDERAL REGULATIONS Volume HI STATEMENTS OF CONSIDERATION JANUARY 1, 1987 THROUGH DECEMBER 31, 1996 PARTS 0-49 Division of Administrative Services UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555

UNITED STATES NUCLEAR REGULATORY COMMISSION Rules and Regulations Title 1O - Chapter 1 CODE of FEDERAL REGULATIONS Volume Ill STATEMENTS OF CONSIDERATION JANUARY 1, 1987 THROUGH DECEMBER 31, 1996 PARTS o-49 Division of Administrative Services UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555

PREFACE The Division of Administrative Services 1 Office of Administration, distributed a reissuance of the "basic book" of the NRC Rules and Regulations in June 1999. This edition of the NRC Rules and Regulations monthly supplement program contains all codified text of 10 CFR effective through March 1999, including the 40 supplements that comprised the publication as of February 26, 1999, plus the supplement for March 1999. As part of this reissuance of the basic book that comprises the "loose-leaf' NRC Rules and Regulations, the. Statements of Consideration for final rules published from January 1, 1987 thru December 31, 1996, were removed. This decision was made to reduce the unwieldy size off this monthly publication. The Statements of Consideration for final rules in this bound, two-volume set (Volumes Ill and IV) are to be used as a permanent companion to the NRC Rules and Regulations. These volumes are not a compiete historical set of NRC rulemaking preambles but merely replace those Statements of Consideration for final rules that were removed as part of the March 1999 compilation. The Statements of Consideration for final rules prior to January 1, 1987 are also available in a bound, two-volume set (Volumes I and II). Volume I consists of the Statements of Consideration prior to January 1, 1987, for Parts 0-49 of 10 CFR.

• Volume II consists of the Statements of Consideration prior to January 1, 1987, for Parts 50-199.

Volume Ill consists of the Statements of Consideration from January 1, 1987 through December 31, 1996, for Parts 0-49. Volume IV consists of the Statements of Consideration from January 1, 1987 through December 31, 1996, for Parts 50-199 . .I I iii

UNITED STATES NUCLEAR REGULATORY COMMISSION RULES and REGULATIONS TITLE 10, CHAPTER 1, CODE OF FEDERAL REGULATIONS-ENERGY fpAiffi __CQN_PUCJ OF EMPLOYEES LU STATEMENTS OF CONS1DERA_T19N

SUMMARY

The Nuclear Regulator~* its regulations to narrow the scope of Commission is amending its regulations the Juel .cycle securH!' prohibHioo..

governing the ownership bJ NRC Under tbe revised :regula lion. the employees of stocks. bonds. and other Commission's Ex~cutive Director for security interests in companies engaged *Qperations (EDD). after consultation in activities relating to the nuclear fuel wifb the Office of the General Counsel, cycle so that only the major companies will designate the *major fuel cycle engaged in nuclear fuel cycle activities applicants.andJicensees whose .sei::urity would be placed on the agency's interests w:e subject to the agency's prohibited stock list. The Commission stock ownership restrictions and 1hus also is amending its regulations to rna_y not *he OY>'ned b_y .NRC .employees. address the treatment of vested pension 'Because there .is ,a dearth of publitjy interests held by NRC employees. available infonnation.regarrling how EFFECTIVE DATE: April 7, 1987-much income a given.company derives from NRC.licensed Juel C!*de actillities FOR FURTHER INFORMATION CONTACT:

                                                                                           *and what percentage of the company's Paul Bollwerk, Senior Attorney. Office           total income fuel cycle .acti\*ities account of the General Counsel. U.S Nuclear              for, the EDD's .determination regarding Regulatory Commission. Washington.               what .companies are .to be .included DC 20555, telephone (202) 634-3224.              within the stockDwnership prohibition SUPPLEMENTARY INFORMATION: In July               necessarily must he subjective.

1979 (44 FR 41422). the NRC promulgated However. the Commission expects that regulations that barred most NRC those companies wiih large income from employees from owning stocks. bonds, fuel cycle .activities or those companies or other security interests in Mcompanies whose Juel cycle activities constitute a licensed by the Commission to mill. significant portion of corporate busines~ convert enrich, fabricate, store. or will be inc1uded witbin the proscription dispose of source of special nuclear bylheEDO. material. or applicants for such The Commission is .also amending its licenses." 10 CFR D.735-29(b)(l){v). regulations to provide*exp1icit1y that no Subsequently. as a result of corporate employee 'is lo provide advice to the mergers. several large corporations with NRC on matters affecting a company ,in minimal financial interests in the which he or sbe bas a .11ested pension commercial nuclear industry fell within interest 'from prior employment, unless the purview of the regulation. Some an exemption has been grant.ed agenc.v .employees were required .to perm:i !Ung the employee .to .workvn such . diw~s, 1hemselves oI these securities ma1lers. Exemptions are.grantedl:iy Jhe

                                         . because lhe existing regulations

• emJiloyee~s office director.only after a
• 52 FR 1.,1026 rcguired designalion of the colllpanies
• determination has been made b_y !he Published 4/7/87 withou1.regard lo wbelher ibe Office of General Counse1, after a EffeC1iVB 4(7 /87 corporation d!!riverl liigru!icant 8fOSS re\*iew of the pension.plan, that as an re\*.enues or e significant perc1mtage Df NRC employee the individual.cannot 10 CFR PartO its revenues Irom these fuel cyc1e influence. in any fashlon, the amount activities. received from the pension. This rule Restrti:tlon Agalnst Ownership of Based upon its .experience wJth .the codifies existing agency practice.

Certain Security tnterests by regu1ation. the Commission .has "Because these are amendments Commissioners, Certain Staff determined tha1 the scope of !he dealing wilb agency organization, Members. and Other Related regu1ation is -loo broad and .that it practice. and procedures. the .notice and Personnel; Vested Pension Interests should be narrowed so .that only the comment provisions of ihe major companies engaged in nuclear Administrative P.rocedure .'!.ct do not AGENCY: Nuclear Regulatory apply pursuant to s*u.Ei.C. 553[b)(A}. Commission. Juel cycle actillities should be placed-on the agency'Jl prohibited stock list. The.amendment.. are effectiH: 1.:pon . ACTION: Final rule. . publiretion in the F"ederal Re-~-is\er. According1)', the Com!I'..ission u; re~ising O-SC-1

PART O

• STATEMENTS OF CONSIDERATION Good cause exis1! .c, -:1:! :,t:-:H: ,\*i~b 'the required. in thi!dns1ance the implements the prohibition in 18 U.S.C.

usoal ~-l(*-ria11 deic\' fr 't..'lt eff;:ctive date Commission be.lieves ii is the preferred 208(a) against an employee's becaus1: th; ame.:d;'!'1ents arr. of 1:1 minor altematfa*e. participating personally and and adr.iinisL-etin, r:atur*e dealing with a substantially in a particular matter in llackfit :.ei.na!ysis matter of c!gency. conduct. employee which the employee, or certain persons owne:.=' 'I' of ce~:rain serurits interests. This fi::al T"'..ile does nol modifa, or add or organizations related to the to SJSlems. structures.. compone'iits. <>r employee, has a financial interest. Emi;-, . *:.*n!al !:::;-,act: Cate,goricai design of B facili~*: the -design approval Section 0.735-21[b), under the authority Exclu!.:* :i or :manufacturing lii:ense for .a facility: or of 18 U.S.C. 20B(b)(1), sets out The i;;;iirm required under this final the procedu!'es or o::gaoizalicm required procedures for graing case-by-case rule is administrative and would no1 to design. construct. or onerate a facility. exemptions from§ 0.735-21(a) in impact the environme...11!. The NRC has Acc:ordinglr. no bar-J:fit ena1~*sis . instances where the interest involved is delermined that this fina1 ru1e 1s the type pursuant lo 10 Cf'R 50.'l D9[c) is required not so substantial as to be deemed likely of acllon ae~cribed fo categorical for this final rule. to affect the integrity of the services exclusion 10 CFR 51.22{c)l2). Therefore. List of Subjects in lD CFR Part 0 which the Government may expect from neither an environmenla1 impact the employee. statement nor an environmenta1 Conflict of inte::esL Penalt)*. Experience with § 0.735-21(b) has assessment bas been pn,pared Jar this F.o:: the reasons set out in the shown that this paragraph's description final rule. preamble and under the authorih* ohhe of the procedures to be followed in Atomic Enf!!ID* Act of 1954. as a;,ended. Paperwork Reduction Act Statement entertaining exemption requests, and the the Energy Reorganization Act of 1974, as amended, E.O. 11222 of Mav B. 1965, 5 *standards to be applied in deciding This final rule contains no information whether to grant the requests, are in collection requirements and. therefore, CFR 735.104, and 5 U.S.'C. 553.1he NRC is adopting the foUowin.g amendments to need of clarification and elaboration. is not .subject to 1he requirements of the For example, strictly read, the paragraph Paperwor'k Reduction Ac! oI 198D {44 10 CFR Part 0. does not cover exemption requests from U.S.C. 35Dl. et seq.). 52 FR 30902 employees in Commission-level offices. Regulatory Analysis Published 8/18/87 Moreover, experience in the NRC and Effective 8/18/87 other agencies has identified important Under existing Commission 10 CFR Part 0 factors to be considered in deciding re,gulations, ceriain .specified NRC whether to grant case-by-case employees are prohibited from owning Standards and Procedures tor Case- exemptions, yet the standard set out in security interests in firms having by-Case Exemptions for De Mlnimis the paragraph merely restates the substantial interests in the .commercial Interests From Prohibition Against statutory language. nuclear Tield, including the -0wner/ Employee's Participation in Particular The revised § 0.735-21(b) applies to operators of nuclear fuel cycle facilities. Matter Affecting Employee's Financial all employees. It more clearly assigns The present re,gulation includes all fuel Interests the responsibility of deciding whether to cycle facility owner/operators without regard to whether the facilit}' provides AGENCY: Nuclear Regulatory grant the request and assures that there substantial gross revenues to -the Commission. will be an adequate written record of company Dr a substantial percentage .of ACTION: Final rule. each decision. It also sets out a number the company's gross revenues. T.he all- of factors to be considered in such inc1usive nature of this regulation h.as

SUMMARY

The Nuclear Regulatory decisions, including the nature and size caused substantial hardship lo some Commission is amending its regulations of the interest and the nature and NRC employees. The increased number governing the granting of statutorily significance of the employee's services of corporate mergers has resulted -in, authorized case-by-case exemptions for td the Governrrient. 1 These changes will and may continue to result in, large insubstantial interests from the help assure that the discretion given the conglomerates acquiring -companies that prohibition against an employee's agency officers by 18 U.S.C. 208(b) will own and operate fuel cycle facilities. personal and substantial participation in continue to be exercised in an This, in tum. bas required .that NRC a particular matter the outcome of which appropriate fashion.

emplo)*ees divest themselves of the would have a direct and predictable effect on the financial interest of the Under 5 U.S.C. 553(b)(A), because parent conglomerate's securities. The these amendments deal solely with a1temative adopted in this rule. y.*hich employee or certain persons or organizations related to the employee. agency organization, practice, and will require designation only for procedures, the notice and comment companies that derive substantial gross Experience has shown that the agency's procedures and standards for granting provisions of the Administrative revenues from fuel cycle acti\'ities or a such exemptions are in need of Procedure Act do not apply. The substantial percenlage of gross re\'enues from such activities. will minimize the .clarification and elaboration. The amendments are effective upon . likelihood of further forced divestitures revisions will help assure that the publication in the Federal Register.

.caused by mergers while at the same                   discretion given by statute to agency             Under 5 U.S.C. 553(d)(3), good cause time preserving the regulatory policy                 officers to grant these exemptions will           exists for dispensing with the usual 30-underlying the prohibited securities                  continue to be exercised in an                    day delay in the effective date, since the restriction. It thus is the preferred                 appropriate fashion.                              amendments are of a minor and alternative and the cost entailed in its              EFFECTIVE DATE: August 18, 1987.                  administrative nature, simply clarifying promulgation and application is                       FOR FURTHER INFORMATION CONTACT:                  and codifying the procedures and necessary and appropriate.                             Steven Crockett, Attorney, Office of the          standards for the granting of certain As to tha! ::,:)rtiun of the final rnlt:           General Counsel, U.S. Nuclear                     statutorily authorized exemptions for relati~ 'to ,.;i:,ed pen1,ion interests. this         Regulatory Commission, Washington,                agency empl_o~y_e_es_._ _ _ _ _ _ __

c..'1,mge. is desi~e.i to codify exisling DC 20555, telephone (2D2) 634-1465. 1 In contrast, a number of factors generally would agenc;r prc,ctice in rt:la1iur. to Hi; SUPPLEMENTARY INFORMATION: Section not be relevant to the granting of an ad hoc consideration of sucb in tares ts. D.735-21(a) of the Commission's exemption, including the character of the employee Although such codification if; no1 legally stanadards. of conduct regulations or special government employee making the request for an exemption, and whether, in the case of an employment interest, the outside employer is a nonprofit oeganization. O-SC-2

PART O

• STATEMENTS OF CONSIDERATION Environmental Impact: Categorical List of Subjects in 10 CFR Part O NRC staff or persons outside.the agency Exclusion Confict of interest, Penalty. with regard to matters that are the The action required under the final For the reasons set out in the subject .of a formal adjudicatory hearing.

rule is administrative and would not preamble and u11-der the authority of the By.notice_published in the Federal impact the environment. The NPC has Atomic Energy Act of 1954, as amended, Register on May 27. 1986 (51 FR 19067) .. determined that this final rule is the type the Energy Reorg11nization Act of 1974, the-date for submitting comments on the of action described in categorical as amended, E.O. 11222 of May 8, 1965, 5 proposed Tr.visions was extended lo exclusion 10 CFR 51.22(c)(1). Therefore, CFR 735.104, and 5 U.S.C. 553, the NRC June 26. 1986. neither an environmental impact is adopting the following amendments to The Commission*s March 1986 statement nor an environmental 10 CFR Part o. rulemaking proposal was the assessment has been prepared for this culmination of an extended agency 52 FR 31601 effort to address concerns about its final rule. Published 8/21/87 existing rules.governing private Paperwork Reduction Act Statement Effective 8/19/87 communications*with agency This final rule contains no information Statement of Organization and General adjudicatory. decisionmakers. collection requirements and, therefore, Information On March 7. 1979 (44 FR 12428). in is not subject to the requirements of the response to the adoption of the See Pan 1 Statements of Consideration Paperwork Reduction Act of 1980 (44 Government in the Sunshine Act with its U.S.C. 3501, et seq.). provisions placing specific restrictions 53 FR 10360 on ex parte communications between Regulatory Analysis Published 3/31/88 Effective 4/29/88 adjudicatory decisionmakers and Under existing Commission persons outside the agency (5 U.S.C. regulations, NRC employees are 10 CFR .. Parts O and 2 .551(14). 556(d). 557(d)), the Commission prohibited from participating persoµally published a proposed rule .to revise its and substantially ib any particular Revision to Ex Parte and Separation of existing regula lions to -incorporate :the matter in which the employee, or Functions Rules Applicable to Formal new statutory provisions. Thereafter,-as persons or organizations closely related Adjudicatory Proceedings a result of the accident in March 1979 al to the employee, has a financial interest. AGENCY: Nuclear Regulatory Three Mile Island, Unit 2, the However, a statutorily authorized ad Commission. . ~ommission's operating procedures. hoc exemption from this prohibition may ACTION: Final rule . . came under intense scrutiny.

  *be granted in any case where the                                                           Recommendations were re-ceived from financial interest involved is so             

SUMMARY

This final nile amends the several quarters, including Three Mile insubstantial as to be deemed unlikely Commission's rules* of practice by lslarid inquiry groups. the American Bar to affect the integrity of the services the revising those regul_ations dealing with Association. and the Commission's Government can expect from the ex parte communications and separation

• Office of the General Counsel and its interested employee. Experience with of functions in formal adjudicatory Regulatory Reform Task Force. that the regulation has shown that its proceedings. This amendment updates suggested the Commission's existing description of the procedures to be the existing rules by incorporating rules on separation of adjudicatory and followed in entertaining exemption requirements imposed by the
• nonadjudicaiory fonctions, which barred requests, and the standards tp be Government in the Sunshine-Act as it private contacts between any member of applied in deciding whether to grant the relates to ex parte communications. The the NRC staff and the Commission requests, are in need of clarification and final rule also allows members of-the re~arding contested fssues in an .

elaboration. The revised § 0.735-21(b) NRC staff to serve as confidential adjudicatory proceeding. were ovei-ly applies to all employees. It more clearly advisors to the Commission with respect

• stringent as compared to the specific

~ assigns the responsibility of deciding to a contested proceeding so long as reouirr.ments of the Administrative whether to grant the request, sets out a :those staff members du not act as Pn;cedure Act (APA) (5 U.S.C. 554(d)1.

  *number of factors to be considered in         investigators or litigators in the           According to several of these reports.

1 such decisions, and assures that there

   'will be an adequate written record of proct!eding. This rule is intended to aid   this loo strict interpretation was impeding the agency*s ability.to protHct I                                                 in maintaining effective communication each decision. Although these changes         between decisionmaking officials and         the public health.and safety by isolating f   are not legally required, the Commission      NRC staff personnel and individuals         the Commission unnecessarily from believes they will help assure that the        outside the NRC while ensuring that         _NRC staff knowledge and expertise.

discretion given to agency officers by 18 proceedings are conducted in an U.S.C. 208(b) will continue to be Recognizing these concerns.--a impartial manner. proposed rule was published in March exercised in a reasonable fashion and certain conflicts of interests thereby EFFECTIVE DATE: April 29. 1988. 1986 that superseded and withdrew the avoided. The revised regulation is thus FOR FURTHER INFORMATION CONTACT: 1979 proposed rule. This new proposal an alternative which is lo be preferred Paul Bollwerk. Senior Altornev. Office contained a number of sugizested to the unrevised regulation, and the of the General Counsel. U.S. Nuclear organizational and substantive changes administrative cost to be borne by the Regulatory Commission. Washington. in the existing regulations. 10 CFR 2.719 agency in promulgating and applying the DC 20555. Telephone: (202) 634-3224. and 2.780. regarding communications revision is necessary and appropriate. SUPPLEMENTARY INFORMATION: precluded by ex parte and separation of functions considerations. In addition to Backfit Analysis I. Background consolidating these provisions into This final rule does not modify or add On March 26. 1986. the Nuclear *consecutive sections,*§§ 2.780 and 2.781. to systems, structures, components, or Regulatory Commission published in the common definitions were proposed for design of a facility; the design approval Fedei;-al Register (51 FR 10393-10402) inclusion in§ 2.4 in an effort-lo make or manufacturing license for a facility; or proposed amendmr.nts to its.Rules of both the ex parte and separation of the procedure or organization required *

• Practice (10 CFR Part 2l that would* functions strictures more lo design, construct, or operate a facility. revise substantially its regulatory understandable. Section 2.780 was to Accordingly, no backfit analysis restrictions on private communications become the vehicle for implementation pursuant to 10 CFR 50.109(c) is required between agency adjudicatory of the Sunshine Act's restrictions on ex for this final rule. decisionmakers and members of the parle communicati9ns. while private O-SC-3

PART O

• STATEMENTS OF CONSIDERATION *,

contacts between the NRC staff and as one in which there is a controversy* initial licensing, in which the decision Commission adjudicator~* between the-staff and the applicant typically is reached on the basis of decisionmakers were to ue restricted concerning the issuance of or any of the legislative facts and general policy under§ 2.781 to comp)~, with the APA"s terms and conditions of a license or is considerations. (51 FR at 10395) As a separation of functions prohibition. one in which--a petition for leave to result, separation of functions is intervene to oppose the application is applicable to anyone performing a

11. Comments and Commission granted or is pending (10 CFR 2.4(n)).

Responses "litigating" function in a particular Under this definition, the elements of proceeding, rather than being limited The Commission received eleven "controversv" and "matters at issue" only lb those acting as "prosecutors," as letters of comment that set forth the are central. we believe this approach the language of section 554[d) might be views of interested utilities. professional also should be applied ininterpreting read to suggest; Three commenters organizations. private counsel. and the section 557(d) phrase "relevant to asserted that the Commission should not individual members of.the public. Ten nf the merits."-Accordingly. in*the context adopt such a narrow reading but rather

 .the eleven commenters expressed               of a .statutorily mandated construction    should limit separation of functions only * .

general support for the Commission's permit proceeding in which no to accusatory proceedings. This effort to revise its ex parte and . intervenor*has sought to contest the effectively would permit prf'vale separation of functions strictures and application, private communications to consultations between NRC-staff provided specific comments on adjudicatory employees from interested members involved in Ii°tigating a case particular provisions of the rule. One *persons outside the agency relating to and adjudicatory officials regarding commenter expressed total matters tha~ are not the subject of contested issues in at least some initial dissatisfaction with the proposed rule as controversy in the proceeding between licensing cases, including reactor an improper a Itempt to _give the NRC the applicant and the NRC staff would construction permit and operating staff an opportunity to advise the . not be considered ex parte. On the other license proceedings. Commission's hearing boards privately hand, because the Commission has As the Commission indicated about Commission policy and "what the chosen as a matter ~f policy to-allow previously in the proposed rule (51 FR at Commissioners want ..." A review of issues in operating license proceedings 10395), to attempt to differentiate _ the specific comments and the to be admitted sua sponte by a presiding between accusatory and nonaccusatory Commission's responses to those officer, as opposed to being resolved proceedings would require the comments follows. informally by the NRC staff, it makes Commission to apply subtle and difficult little sense to abandon an important distinctions in an effort to determine to A. Definition of Relevant _to the Merits" what extent the focus of a particular component of-that process-the Five commenters provided their views protection against off-the-record proceeding will be **prosecutorial." We on the Commission's discussion of the communications. Once a matter is "at continue to believe that such an attempt phrase "relevant to* the merits*of the issue" in an oper.ating Iicen.se is not a worthwhile use of Commission _proceeding" as it-is used-in the Sunshine proceeding. whether at the behest of the resources. particularly because Act, 5 U.S.C. 557(d), and the proposed presiding officer or because it was considerable uncertainty exists about rule, § 2.7BO(a), to define those ma tiers admitted as a party's contention. a whether the application of the ntised in *the context of 1:1 hearing that requirement that public disclosure of all accusatory /nonaccusatory distinction is are subject to the ex parte restriction. In communications to the presiding officer appropriate under section 554(d) (51 FR the proposed rule. the Commission relative to the resolution of that at 10397). Further developments in the requested comments on whether this contested.issue serves to ensure that the case law governing this distinction may phrase should be interpreted to include proceedings are fairly and impartially cause the Commission to revisit this anv issue that must be considered in an conducted. Therefore, private issue in the future. At present. however, uncontested construction permit communications to the presiding officer the Commission will impose separation proceeding even though it is not the from persons outside the agency of functions restrictions on private object of a dispute among the NPC staff, concerning sua sponte issues will be communications between agency the applicant. and any intervenors. and considered ex parte. adjudicatory officials and the NRC staff any issue that was not raised by any It should be added that the term in all formal adjudicatory proceedings party but nonetheiess is considering in "disputed issue" as it is used in the conducted under ~O CFR Part 2. Subpart an operating license hearlng sua sponle separation of functions provision G, without regard to whether the by the presiding officer. Three of the relating to NRC staff contacts with a proceeding otherwise might appear to be commenters thought that the _phrase presiding officer also would be accusatory or nonaccusatory. should be interpreted to bar only those interpreted in a mandatory construction private communications relating to permit-proceeding without intervening* C. Public Designation As an issues put into controversy by the interested persons, to include only those Adjudicatory Employee Only for Sta.ff parties to the proceeding. Two other matters that -are the object of dispute Advisors Consulted "On a Continuing commenters expressed the view that between the applicant and the NRC staff Basis" *

• private communications should be and. in any operating licensing proceeding, those "sua sponte" issues Although lhe Commission will not barred with respect to any issue that a apply the separation of functions party or the presiding officer proposed properly raised by a presiding officer.

restriction on the basis of the to have considered in a particular

• B. Distinction between Accusatory and accusatory /nonaccusatory distinction, it proceeding. whether consideration is Nonaccusatary Proceedings will limit that restriction as it applies to*

due to the Atomic Energy Act mandate In the proposed rule, the Commission private communications with the to conduct a hearing on a construction Commission solelv to those staff indicated that, for purposes of applying permit or consideration is proposed by a members who ha,;e performed the separation of functions bar. it would party or the presiding officer. interpret APA section 554(d) as making "investigating or litigating" functions in Under existing practice, ex parte

• separation of functions applicable both a particular proceeding. Thus. a member restrictions apply to any substantive to accusatory proceedings. i.e., those in :Of the NRC staff who was not involved matter at issue in a contested which the primary concern is the in conducting or supervising the proceeding (10 CFR 2.7BO(a). (e]J. A lawfulness of party conduct, and to technical review of an application that contested proceeding. in turn. is defined nonaccusatory proceedings, such as is the subjec! of an adjudicatory O-SC-4

PART O

• STATEMENTS OF CONSIDERATION proceeding or the litigation of the matter BP.plied to prohibit participation in all The proposed rule would not change before an Atomic Safety and Licensing aspects of a proceeding by a staff existing agency practice, embodied in Board or an Atomic Safety and . member performing an .investigative or .§ 2.719(c) and Part 2, App."A.,*IX(c), that Licensing Appea1 Board can serve as a litigative function inothat proceeding, not precludes consultations between confidential advisor to the Commission *iust with respect .to those "issues with member~ of the Atomic Safety and with respect to the application and the which the individual*has particular
• Licensing Board assigned to a merits of the adjudication. Section 2.4(9) .involvement. See Trans World Airlines, proceeding and members of the Atomic of the proposed rule stated that if a .staff Jnc. ll. CAB, 254,F..:Zd.90, 91 &.n.2 (D.C. -Safety and Licensing Appeal Panel -on member was to be consulted by*the Cir.1958). This.authority. in combination any fact in issue in the proceeding. The Commission with respect to the issues in with the practica1 .complications Commission, however, requested a particular proceeding "on a continuing involved in drawing lines to separate comments on whether this bar to basii_;," that person would be appointed investigating or litigating participation in communications was necessary or as a.n adjudicatory employee and the . part of a proceeding from appropriate (51 FR at 10398). Six of the partie~ to the proceeding would be given decisionmaking participation in other commenters addressed this issue and all notice of that appointment Two parts,. convinces the Commission that it should not adopt this suggestion.
• supported retaining the present practice, commenters asserted 1hat public citing the decisionmaking function of the designation only for staff advisors E. Allowing Former Adjudicatory Boards and the need ta ensure fair
• consulted "on a continuing-basis" was Advisors to Perform Litigative or review procedures that -protect the unfair and created a great potential for investigative Fllnctions ln the Same integri~ of the administrative record.

abuse. Upon further consideration, the Proceeding The Commission will do so. Commission has decided that the purposes of the rule will be better Related to ihe question of issue by G. Exemptions _for Pri1*ate Sta[( served if each member of the staff who issue designation of adjudicatory Consultations with the Commission will be used as an.advisor in an employees .is the issue whether an Reµarding Lute-filed Contentions and, adjudication is appointed publicly as an employee who hiis put aside the mantle Motions to Reopen adjudicatory employee without regard to of adjudicato~* employee can thereafter In setting out a number of possible the duration of anticipated service. become a staff litigator or investigator in exemptions to the separation of D. Limiting Designation As an the slime proceeding. The proposed rule functions provision of the proposed rule,

• AdjudicatorJ' Employee.to Particular did not contain any provision that the Commission proposed that private Issues in a Proceeding addressed this question. However, in consultations between the NRC staff response to a Commission request for and Commission 'be -permitted in Two commenters also suggested that comments on the propriety of including instances when a request was made tu because the ex parte prohibition on language that would permit a switch in add issues to a proceeding after an private contacts with persons outside roles, three commenters supported the the agency will attach to any staff initial d1!cision is rendered or 10 reopen addition of a provision. Two the record after an *initial or final member designated as an adjudicatory
• commenlers. however, opposed the employee. the Commission should act to decision. Proposed § 2.781(b)IZ) (v) and suggestion citing the unfair advanti!gc a (vi). In support of each of these limit the impact of the designation by former advisor would give the staff in making ii applicable onl~* to the specific exemptions. the Commission referenced

                                             . accusatory proceedings because of thEi        judicial decisions allowing agency staff issues about which the Commission               insights he or she had gained in the wishes advice from the employee. After                                                        contacts with agency heads about the
                                              -decisionmaking process and the                addition ofissues to a proceeding or reviewing this comment carefully. the           detrimental effect allowing such a Commission has decided not lo adopt                                                           about reopening the record (51 FR at switch in roles would have in public          10399). The three commenters that such a pro,*ision.

confidence in the fairness of the addressed these exemptions all This proposal for issue by issue proceeding. adjudicatory advisors arguably would *questioned their validity, asserting that avoid the ex parte ban on outside The Commission is not convinced that the Commission was going beyond what -contacts regarding the nondesignated the change from the role of an was:sanctioned bv the-cases, al least issues. It also appears that, carried to its adjudicatory decisionmaket's advisor to prior to the time i final agency decision logical conclusion, this proposal -would a litigator or investigator necessarily is is rendered. Upon further consideration. sanction staff members simultaneously *one the APA or constitutional due the Commission has decided to delete assuming the dual role of adjudicator process would preclude. Nonetheless, these proposed-exemptions as they and investigator/litigator in the same we do agree -with .the observation of one relate to attempts to add issues or proceeding. at least so long as different of the commenters opposed to allowing reopen the record prior to a final agency issuei; were involved. Neither the this.type ofrole*change that present decision. language of section 554(d). which states staffing levels make it unlikely that NRC Nonetheless, the United States Court that a person performiqg an staff members who *previously have of Appeals for the District of Columbia investigative or.litigating function is not provided advice to agency adjudicatory Circuit's decision in RSR Corp. v. FTC, to advise.in.a "case*or-a factually decisionmakers will need lo be pressed 656 F.2d 718 (D.C. Cir. 1981) (per related case," nor the Attorney . into service as litigators -or investigators curiam). fairly can be read as holding General's Manual on the APA. which that once an agency-adjudicatory speaks of the bar in terms of "cases" or in the same proceeding. Accordingly. the proceeding. or a discrete portion of that proceedings" rather than "issues." see Commission believes that the best proceeding. has become United StatesUep't of )ustice,.Attorney course is"to leave this issue for administratively finaL which would General's Manual on the.Administrative. determination if -and when it arises in a include the conclusion of.any Procedure Act 54-55 & n.6 (1947), particular oase. Commission discr.etionary review of suggests that such an issue by issue Appeal Board decisions under 10 CFR application of the separation of F. Restriction on Communicotions 2,786, the separation of functions bar functions bar is appropriate. Similarly. Between.Members. pf the.Licensing effectively ends forthe*-purpose of judicial precedent suggests that the .Boa,:d and the AppealPanel considering any Jater requests to reopen separa lion of functions -bar should be or otherwise*reinstitute the proceeding. o-SC-5

PART O

• STATEMENTS OF CONSIDERATION Two commenters suggested the 3. Marvin Lewis places the focus on how the NRC Commission include a provsion in its Commenter Marvin Lewis stated that adjudicatory officials reviewing the proposed rule indicating when the he opposed the proposed rule because it communication or the NRC staff separation of functions prohibition would provide an opportunity for the member or interested person*making the woufd end. In r-espoRse .to -that commenl. Commission and the NRC staff to communication view the generic issue in and in line with RSR Corp., we have discuss policy matters *and those relation to.an ongoing Subpart G formal

-decided to add a sentence to § 2.781(d)       discussions could be used by the staff to      adjudicatory proceeding.

that accomplish this pnrpose. Moreover. "continuously" update the hearing As was explained in the propo_sed rule a parallel provision has been added to boards on the-Commission's position (51 FR at 10397), this language was

 § 2.780 to indicate that the ex parte         with respect to particular hearings. This      added to make it clear. that off the prohibition will be terminated at the          clearly is incorrect. As the discussion        record communications regarding same point.                                    accompanying the proposed rule made            generic matters are not to be presented apparent (51 FR at 10399), under              or used as a basis for resolving issues in H. Additio11al Comments by Particular         "§ 2.781[e} staff members who become           a formal. "on the record" proceeding.

Parties adjudicatory advisors cannot be the Thus, a communicator*s attempt to In addition to the matters discussed conduit for otherwise improper associate a communication purportedly above that ~*ere the subject of multiple communications from the Commission relating to a generic matter with the comments, other commenters raised the to those staff members serving as resolution of matters in a proceeding or specific issue addressed below.

• litigators or investigators in a hearing an adjudicator's association of an proceeding. That provision is retained in Qtherwise proper communication on

1. Scientists and Engineers for Secure generic matters with the resolution of Energy, Inc. the final rule.

                                                                                           . issues in a formal proceeding would The Scientists and Engineers for           4. Shaw, Pittman. Potts & Trowbridge           make those communications subject to Secure Energy. Inc., ("SESE") questioned         The law firm of Shaw. Pittman, Potts        the ex parte or separation of functions in general the agency's use of                & Trowbridge. on behalf of its utility         restrictions and require that the agency "accusatory" adversarial. trial-type          clients, noted that paragraph (6) of the       take appropriate measures, such as procedures for nuclear power plant             proposed definition of "Commission             public disclosure of the communication, licensing. According to SESE. the trial-      adjudicatory employee" in § 2.4 should        in accordance with § 2.7BO(c) or type hearing required by 10 CFR Part 2.       be revised to reflect the consolidation        § 2.781[<;). It was the Commission's Subpart G is unnecessarily legalistic and    ,and reorganization of the Office of the       intention, however. that a determination stands in the way of getting to the           General Counsel and the Office of the          about whether a "generic" matter was in appropriate factual and analytical bases      Executive Legal Director and suggested        fact associated with the resolution of for making informed judgments about           that the phrase "in a proceeding" be           contested issues in a proceeding should those technical disputes that form a          added to paragraph (B) to make it clear        not be governed solely by the great portion of the controversy in           that the appointment of a staff member         perceptions of those making or using the power plant licensing proceedings. This       to serve as an adjudicatory employee           communication. Accordingly. the comment relates-to matters that are           applies only to the particular proceeding      suggested deletion will be made with the beyond the bounds of this rulemaking          for which the appointment is made. This        intent that it is only to dispell any proceeding: however.. the Commission          has been done. Further, in response to         ambiguity about the standard for would note that in the context of its         another of the firm's comments

• determining whether a "generic" consideration of the certification regarding the scope of the phrase communication was, in.fact, one process for standardized designs for "interested person" as it is used to actually associated with a licensing nuclear power plants, it has been define those outside the agency who are proceeding.

considering ways to simplify the subject to the restriction on ex parte procedural aspects of any hearings held communications, the Commission notes 6. Leboeuf. Lamb, Leiby & MacRae as part of that process. In addition, it that the phrase.is intended to include On behalf of a number of its utilitv recently has taken steps in the area of coverage of the representative of an clients, the Jaw firm of LeBoeuf, La~b. materials licensing hearing procedures interested State, county. municipality, or Leiby & MacRae questioned whether, that are intended to address some of the an agency thereof, participating in a given the designation of duties in 10 CFR criticisms of the formal adjudicatory proceeding in accordance with 10 CFR 1.33 that suggests they are not involved process raised by SESE (52 FR 20089; 2.715(c}.

• in the decisional process, the Secretary May 29, 1987 (proposed rule on informal of the Commission and employees of the

*hearing procedures for materials             5. Bishop, Liberman, Cook, Purcell &

Reynolds Office of the Secretary should be licensing adjudications)). designated as "Commission On behalf of several utility clients. the adjudicatory employees." The

2. Pars Associates, Inc. law firm of Bishop. Liberman, Cook, involvement of employees of. the Office Pars Associates, lnc.*["PAl"J Purcell & Reynolds suggested that of the Secretary in the decision making suggested that the proposed definition of proposed § § 2.7BO(f}(4) and 2.781(b)[iv), process is in major part administrative.

"interested persons" subject to ex parte      which provide an exception from the ex         *The Secr.etary nevertheless does have restrictions somehow acts to restrict         parte and separation of functions               the*authority to issue certain procedural uniluly the participation of large            restrictions for communications on             orders that*can have an important numbers of the public in the                  generic issues, be revised to delete           impact on a proceeding, see lO*CFR adjudicatory process. In fact, that           language indicating that the .             . 2.772. Employees of that office also have definition does not limit participation at    communication must not be "associated          access to otherwise confidential all, but merely identifies those persons      by" the Commission adjudicatory informatiQn concerning Commission outside the agency whose                      employee, .the *NRC officer or employee decisions and oft times aid the communications to an adjudicatory             performing investigative or litigating Commission's decisional process by decisionmaker must be made on the             functions, or*the person outside the facilitating the exchange of views

• record to avoid being considered as -agency "with the resolution of any between Commissioner offices.

improper ex p_arte communications. proceeding under {10 CFR Subpart G]

                                                                                            *Employees of the Office of Secretary pending before the NRC." According to therefore will continu*e to _be designated the commenter; this language improperly as *adjudicatory employees.

o-SC-6

PART O

• STATEMENTS OF CONSIDERATION This commenter also suggested that 7. Baltimore Gas and Electric Company in categorical exclusion 10 CFR the Commission delete § 2.780[d) that Commenter Baltimore Gas and 51.22.fc}(l). *Therefore, neither an provides for sanctions against outside Electric Company questioned the environmental impact statement nor an parties who knowingly make ex parte -propriety .of proposed § 2.781(£), which environmental assessment has been communications. The commenter opines requires that the substance of a prepared for this proposed regulation.

that this provision is unnecessary communication between an Paperwork Reduction Review because the appropriate remedy for adjudicatory .decisionmaker and an . these communications is to make them advisor that is properly maclc-under the This final rule contains no information public .md notify the parties. 11 has bt:en separation of functions bar nonetheless collection requirements and therefore is the Commission*s experience that this is may he required to be disclosed if the not su bjec1 to the requ"irements of the thr. appropriate remedy for an ex parte adjudicatory decisionmaker's initial or Paperwork Reduction Act of.1980 {44 communication. Nonetheless. it is no! final decision is stated to rest in whole U.S.C. 3501, et seq.). inconceivable. as the Congress or jn par! on inform a lion made known .in Regul!ltory Anal~*sis recognized in adopting APA section the communication. The commenter 557(djj1l[D). the statutory basis for suggests that this is insufficient because *under.the APA. 511.S.C. 554(dJ.

§ 2.780{d). that same ,*iolations may         the communication is made public only        557[d). in formal.adjudicatory warrant the types of sanctions against         if :it is relied upon. However, this         proceedings, restrictions apply to the offending party that § 2.780[d)           comment fails to recognize that the          communications between adjudicators authorizes. The Commission therefore           scope of this provision goes only to         and a.gency employees perform1ng declines to delete this provision.             communications that otherwise are            investigative or.litigating functions or This commenter also declared that         made in conformance l'Vith the               interested persons outside the agenCl'*

proposed § 2.7B1(h)(3), which Btates that separation of functions restriction. The revisions in thislinal rule's

"[n]one of the communications                  Under§ 2.781[c) all private                 provisions on ex parte communications permitied hl' paragraph {b )(2) .of this      communications from a litigator or           will conform the language of the section is to be ~ssociated '* ,..

• with investigator to an adjudicatory agen~v*s present:regulations more the resolution of any proceeding * * .. " decisionmaker barred ~y separation.of closely to the Sunshine Act's provisions is unclear and suggested*the substitution functions considerations must be restrictit!B.J::Ommunications with persons of the word "used" for "associated." The publicly disclosed. The.§ 2.781(1) outside .the agency. This amendment term "associated."-which also is utilizec! provision is a different, border does not-.affect the substantive in..§ 2.7BO{f)l4). is intended to *have a protection. It is designed to ensure that restrictions on -outside communications somewhat broader meaning than **used" an adjudicatory .decision-is based upon applicable .under present regulations.

to the extent that it covers not orily the the*record developed during the.hearing. Under the rei.rised separation of use of prohibited communications. but not upon the otherwise proper but functioas .rwe. Jrowever. there will be an also the act of making tbe nonetheless private revelations of an increased -possibility for .adjudicator/ communication. even if ii is not used by adjudicatory advisor that provide a new staff communications because those the adjudicatory employee. The

• factual or analytical basis for the staff members not involved in an Commission likewise declines to change decision. The Commission sees no basis investigative or litigating function in a this provision. for deleting this provision. particular _proceeding can advise Finally, this commenter suggested that decisionmakers.on matters at issue in in secti~n VII of paragraph (c:)(2) of 8. GPU Nuclear Corporation that proceeding. The potential for Appendix A to Part 2 the reference to GPU Nuclear Corporation suggested increased information *to adjudicators "matters certified" pursuant _to that .the Commission include a definition makes this rule change preferable to

 §§ 2.720(h) and 2.744(e) should be            of the conditions under which a -licensee    existingTequirements. *While other deleted because neither referenced            may _participate in ex parte                 possible rule -change options exist.

section calls certification of anything. communicatious with the NRC staff on notably invoca tian of the "initial Previously, these sections did provide issues .relating to an adjudicatory licensipg" exemption in .the APA or for automatic certification to an Atomic proceeding. Because,it is clear from reading the section.554(d) restriction to Safety-and Licensing Appeal Board nr to § § 2.780 and 2.781 that the only ex apply only to .prosecutors" l'ather .than the Commission of a presiding officer's parte/separation of functions restraint "litigators." *serious ,questions. about the order allowing discovery against the upon communications between*an efficacy of these parlit:nlarTevisions NRC staff under.a subpoena or request applicant or licensee and members of make them unacceptable -both in terms for the-production of documents (37 FR the NRC staff is for those staff members of agency resources to ;defend the rules 15127. 15132, 15135; July 28, 1972). Under who are appointed as adjudicatory and the :p_ossibility uf-judicia:l reversal of the 1erms of Appendix A. however. such advisors, no further definition is needed licensing -actions hased on the a discovery dispute was not considered to reUerate this .poinL -Also unnecessary, application of the rules. The .final rule a substantive:matter at issue in. the the Commission finds. js this thus is the preferred altematii.re and the proceeding requiring that there be no

• commenter's 'suggestion that a specific cost involved in its promulgation and intraagency consultations and
• provision be included* to allow the application is necessary and communications regarding the dispute Commi!1sion to decide and announce the . appropriate. The .foregoing discussion (37 FR at 15124). Upon further termination of the appointment of a staff constitutes the regulatory analysis for consideration. we see no reason to member as an adjudicatory advisor. this fina1 Tlile.

retain this discovery distinction given This power is inherent in the the laterrevision of the Commission's Commission's administrative authority Regulatory Flexibility Certification discovery .rules to provide the presiding to direct the activities of members of the This final rule will not have a officer with the -discretion to order NRC staff and need not be spelled out significant economic impact upon a discovery against the NRC staff without further. substantial number of small entities. mandatory Commission interlocutary Environmental Impact: Categorical Most entities seeking-or holding review (40 FR 2973; Jan..17, 1975). Accordingly, this discovery certification Exclusion construction 'Permits or Commission

                                                  *The NRC has determined that this         licenses that would be subject to the provision now is being deleted from final rule is the type of action described  revised ex parte provisions would -not Appendix A.*section VIl(c)(Z).

fall within 1he definition-of small O-SC-7

PART O

• STATEMENTS OF CONSIDERATION lmsinesses found in section 34 of the AGENCY: Nuclear Regulatory may accept food. lodging, and Small Business Act. 15 U.S.C. 632, in the CommiBBion. transportation from an otherwise Small Business Size Standards set out in ACTION: Final rule. prohibited source when proffered in regulations issued by the Small Business connection w:ith a job interview outside*

Administration at 13 CFR Part 121. or in

SUMMARY

The Nuclear Regulatory of the area of an employee's duty the NRC's si2e standards published Commission (NRC) ie a.mending its station.* .

December 9. 1985 (50 FR 50241). regulations aovemins* the ownership by The Commission is also amending Although intervenors subject to the NRC employeee of stocka, bonds. and * § 0.735-42 to permit acceptance of food provision on ex parte communications other security interests in companies end refreshments at widely-attended* likely would fall within the pertinent that fall within any one of five reactor- events sponsured by a consumer. Small Business Act definition. the ex related or fuel cycle-liceDBed categories. environmenta.l, industrial, technical, parte rule would not reduce or increase This amendment will add to the group of trade, or professional association or the litigation burden of intervenors affected employees those special similar sroup that would otherwise fall because it is substaritiallv the same as Government employees who serve as within the general prohibition on the restrictions now in effect. Although memben of the Advisory Committee on acceptance of gifts, entertainment, or the re\*ised r-estrictions on intraagency Nuclear Waste. The CommiHion is also favors from certain sources. The communications found in the separation amending its regulatlone on acceptance amendment follows the guidelines set of functions provision might result in of gifts, entertainment, and fnon, to forth in an October 23, 1987, Office of some cos! .reduction in proceedings in

• permit acceptance of travel expenses* Government Ethics memorandum on that the increased availability to &om an otherwise prohibited soorce "Acceptance of Food and Refreshments

 .adjudicators of staff expertise may             when proffered in connection with a lob    by Executive Branch Employees."

shorten the proceedings. that reduction _intervi_~\,11' and to permit acceptance of Because these amendments relate probably will be negligible. Thus, in food and refreshments at widely- solely to matters of agency management accordance with the Regulatory attended events sponsored by certain or personnel, good cause exists for . Flexibility Act. 5 U.S.C. 605[b). the NRC groups whose membership is composed omitting notice of proposed rulemaking of prohibited sources. and public procedures thereon, as herebv certifies that this rule does not unnecessary, and for making the have ~ significant economic impact upon EFFECTIVE DAT£ September 13. 1988. FOR FURTHER INFORMATION CONTACT: amendments effective upon publication a substantial.number of small entities. Susan Fonner, Senior Attorney, Office of in the Federal Register. Backfit Analysis

• the General Counsel, U.S. Nuclear Environmental Impact: Catezorical This final'rule does not modify or add Regulatory Commission. Washington, Exclusion - **

to systems. structures, components, or DC 20555, telephone (301) 492-1632. The action 11!quired under this final design of a facility: the design approval SUPPLEMENTARY INFORMATION: Section rule is admini1Jtrative and would not or manufacturing license for-a facility: or 0.735-29(a) of NRC's Conduct of impact the environment. The 1',,'RC has the procedures or organization required Employees regulations (10 CFR Part O) determined that this final rule is the type to design, construct, or operate a facility. prohibits Commissioners, certain staff of action described In categorical Accordingly, no backfit analysis members, and other*related personnel. exclusion 10 C:FR 51.Z2(c)(1). Thel'.Cfore, pursuant to iO CFR S0.109(c) is required including members of the Advisory

• neither an environmental impact for this final rule. Committee on Reactor Safeguards. from statement nor an environmental owning certain security interests. The assessment has been prepared for this

 *List-of Subjects                               Commission recently created a new           final rule.

• JOCFR Porto committee, the Advisory Committee on Conflict of interest, Penalty. Nuclear Waste. The Advisory Paperwork Reduction Act Slstement. -

Committee on Nuclear Waste will have This final rule contaiils no information 10 CFR ParJ 2 es its members special Government collection reqwrements and, therefore,

• Administrative practice and employees who will perfonn the same is riot subject to the requirements of the procedure, Antitrust. Byproduct advisory functions with regard to the Paperwork Reduction Act of 1980 (44 material. Classified information, high-level waste repository licensing U.S.C. 3501, et seq.)*.

Environmental prote.ction, Nuclear program that members of the Advisory materials, Nuclear power plants and Regulatory Analysis Committee on Reactor Safeguards reactors. Penalty. Sex discrimination, perform with respect to power reactor Under existing NRC regulations, no Source material, Special nuclear licensing. In view of this, the Commissione1* or employee, including a

• material, Waste treatment and disposal. Commission has detennined that the special Government employee who is a For the reasons set out in. the new committee should be added to the member of the Advisory Committee on
• preamble and under the authority of the listing of NRC employees subject to the Reactor Safeguards, who occupies a Atomic Energy Act of 1954, as amended, prohibition of !i 0.735-29(a). position al or above ~13 or its" ..
• the Energy Reorganization Act of 1974, The Commission is amending § 0.735- equivalent, mny own any stocks:, bonds, *.

as amended, and 5* U.S.C. 553, the NRC 42 of the NRC Conduct of Employees or other securlty interests issued by any adopts the following amendments to 10 regulations, which prohibits NRC entity that falls within any one of five CFR Parts O and 2: employees from accepting gifts. designated reactor-related or fuel cycle-entertainment, or favors (including licerised categories. The Advisory

• 53 FR 35301 travel expenses) &om certain prohibited Committee on Nuclear Waste will have*

Published 9/13/88 sources. Because potential employers as its members special Government* Effective 9/13/88 frequently require *pre-employment employees wllio will perform the same interviews at the employer's place of

• advisory funcltions with regard to the 10CFRPartO business, this prohibition can create high-level w&11te repository licensing
• Restrictions Agalnat Ownership of considerable hardship for any NRC program that members of the Advisory .

employee who wishes to apply for Committee on Reactor Safeguards Certain Sctcurtty Interests by llembera employment with a prohibited source perform with respect to power reactor of Advisory CommlttH on Nuclear licensing. Theae functions include Waste; Gifts, Entertainment, and organization that is located outside of Favon the area of the employee's duty station. providing input on major Commission Under the revised regulation, employees . decisions. ThE: Commission bas, O-SC-8

PART O

• STATEMENTS OF CONSIDERATION therefore, determined that the in nature. A number of Government adjudicatione. 1 The Commission's prior regulations should be revised to provide , agencies have adopted such a provision. decision to abolish the Atomic Safety that members of the Advisory The Commission also believes that this and Licensing Appeal Panel which had Committee on Nuclear Waste are is the preferred alternative, and the cost *provided mandatory administrative subject to the prohibition *on ownership* entailed in the promulgation end
• appellate review of initial decisions of of securities of organizations that faJI application of this and the foregoing. presiding officers in agency within the designated categories. The amendment to the regulations Is adjudications necessitates the revised regulation in an alternative necessary and appropriate. The establishment of a new system. The new which is preferred to the unrevised foregoing discussion. constitutes the system provides for discretionary regulation, and the cost entailed in its regulatory analysis for this final rule. ,\

review by the Commissioners of the promulgation and application is Backfit Anaiysis *

• NRC of moat partial and final initial necessary and appropriate. decisions, referred rulings and 1n accordance with Executive Order The NRC has determined that the certifications of questions.

11222 and Part 735 of Title 5. Code of backfit rule, 10 CFR 50.109, does not EFFECTIVE DATE: July 29, 1991. Federal Regulations, existing NRC apply to this tmal rule and. therefore, regulations prohibit employees of the that a backfit analysis is not required for FOR FURTHER INFORMATION CONTACT: agency from accepting gifts, . this final rule because these E. Neil Jensen, Senior Attorney, Office entertainment. or. favors from an entity amendments do not involve any of the General Counsel, U.S. Nuclear that (1) has, or is seeking to obtain, provisions which would impose backfits Regulatory Commission, Washington, contractual or other business or as defined in 10 CFR 50.109(a)(1). DC 20555; Telephone (301) 492-1634. fmancial relations with NRC. (2) SUPPLEMENTARY INFORMATION: Thie conducts operations or activities that IJat of Subjects in 10 CFR Part 0 final rule (1) sets forth procedures for are regulated by NRC or is an applicant Conflict of interest. Penalty. petitioning for Commission review of for an NRC license, or (3) has interests For the reasons set out In the decisions and actions for which review that may be subetAntially affected by . preamble and under the authority of the is permitted; (2) elitabliehea a standard the perfonnance or nonperformance of Atomic Energy Act of 1954, aa amended, which the Commission will employ in the employee's official duty. However, the Energy Reorsanization Act of 1974, determining whether to take review; (3) Executive Order 11222 and 5 CFR Part aa amended, E.O. 11222 of May 8, 1965, 5 codifies the existing case law standard 735 authorize agencies to provide. CFR 735.104, and 5 U.S.C. 553, the NRC for interlocutory review in revised necessary and appropriate exceptions to is adopting the following amendments to § 2.786(g) and provides that this this prohibition. 10 CFR Part 0.

• standard must be met for interlocutory The present NRC regulation 54 FR53312 appeals under § § 2.718(i) and 2.730(£); (4) prohibiting acceptance of gifts, 'Published 12/28/89. retains the Commission's current entertainment, or favors from prohibited Effe~ve 12/28/89 immediate effectiveness review sources applies to acceptance of travel procedure whereby designated licensing benefits in connection with a job
• Statement of Organization and General board decisions do not become effective interview. Because potential employers Information; Minor Amendments until the Commission so determines; (5) frequently require pre-employment makes clear that for all orders subject to interviews at the employer's place of . See Part 1 Statements of Consideration judicial review a petition for business, the prohibition can create . Commission review is an available 55 FR47740 considerable hardship for any NRC remedy for a disappointed party; and (6)

Published 11 /15/90 employee who wishee*to apply for Effective: upon date of publication. incorporates the provisions of present employment with a prohibited source § 2.762 into § 2.1015(c) (relating to organization that is located outside of

• Statement of Organization and General licensing of a high level waste the area of the* employee's duty station. ., . . Information; Minor Amendments repository) which is otherwise unaltered The alternative adopted in this rule wiJI by this rulemaking. In addition, this final permit acceptance of food. lodging, and
• See Part 1 Statements of Consideration rule deletes reference to the Appeal transportation from an otherwise Panel or to appeal boards from NRC prohibited source when proffered in regulations. Finally, the NRC's connection with a job interview outside 56FR29403 regulations describing internal agency of the area of an employee's duty
• Published 6/27/91.

organization are amended to reflect the station; The Commission believes that Effective 7 /29/91. creation of a new Office of Commission this alternative is to be preferred to the Appellate Adjudication whose function unrevised regulation. 10 CFA Parts 0, 1 and 2 is to assist the Commission in exercising Existing NRC regulations on its adjudicatory responsibilities. RtN 3150-AD73 acceptance of gifts, entertainment, and Thia rule includes an additional favors also prohibit employees of the , Procedures for Direct Commlulon amendment to 10 CFR part 2. This agency from accepting food or

• Review of Decisions of Presiding amendment adds a new § 2.8 entitled, refreshments at widely-attended events Officers "Information collection requirements:

sponsored by organizations that fall into 0MB approval." This section provides the categories listed above. The AGENCY: Nuclear Regulatory the 0MB clearance approval authority alternative adopted in this rule will Commission. for the existing information collection .permit such acceptance where the donor ACTION: Final rule. requirements in 10 CFR part 2, appendix is a consumer, environmental, industrial, 8. The new § 2.8 ie included in 10 CFR technical; trade, or professional *

SUMMARY

The Nuclear Regulatory part 2 solely to correct a technical association, or a similar group. and it Commission (NRC) is amending its rules oversight in the regulations.

has been determined that it is in the of procedure to establish a new system agency's interest that the employee for agency appellate review of decisions

• For aimplicity, theae initial decieiona will be attend the event and the food and and actions of presiding officers in ell referred to ea licensing board deciaion*; however, refreshments offere~ ere not _excessiv:e ~Qmtal and infm::mal agency all initial adjudicatory deciaione are covered by this final rulemaklna.

o-SC-9

PART O STATEMENTS OF CONSIDERATION Background commenter, while supportive of and thus the existing right of the parties On October 24, 1990 (55 FR 42947), the discretionary review in most cases, to a merits review of an initial decision Commission published a notice of urged that review be mandatory in those would not be affected. (October 24, 1990; proposed rulemaking announcing its cases where a licensing board and the 55 FR 42944). Given these facts, the proposal to establish a new system for NRC Staff hold conflicting views with Commission was under no legal duty to providing agency appellate review of respect to the issuance of certain types provide notice and opportunity for initial decisions in all formal and of authorizations because an internal public comment with respect to its informal agency adjudications to replace conflict, in the view of the commenter, decision to abolish the Appeal Panel. ~ the system of mandatory review of requires resolution by the Commission. See 5 U.S.C. 553(b)(AJ. In any event, we I initial decisions by appeal boards This commenter also suggested that the have considered OCRE's view and do followed by discretionary review of Commission's immediate effectiveness not find it persuasive. appeal board decisions by the rule be supplanted with a different The present rulemaking proceeding, Commission. The Commission's need to procedure which would provide a which substitutes a discretionary system formulate a new system was created by definite time limit to the dutomatic stay of review for a mandatory system and its earlier decision to abolish the Appeal now provided for licensing board changes certain procedures by which Panel. The Commission proposed to decisions affected by this rule to help review is conducted, does affect the adopt a system providing for direct streamline the licensing process. OCRE procedural rights of prospective discretionary review of licensing board objected to the Commission's decision appellants and, for this reason, has been decisions by the Commission and to abolish the Appeal Panel and, absent made the subject of a notice and further proposed to adopt a broad reconsideration of that decision, favored comment rulemaking proceeding. In review standard like that which applied mandatory review by the Commission. response to OCRE's comments when the Atomic Safety and Licensing In OCRE's view, a mandatory review concerning NRC's obligations to Board was established in 1962, rather system would be the best means of Congress, we note that Congress was than the more n&rrow standard that the securing direct Commission involvement notified of the Commission's plan to Commission has applied in determining in agency adj'udications and would also abolish the Appeal Panel by letters whether to take review of appeal board be more fair to potential appellants in dated July 3, 1990, from the Chairman of decisions. that all parties dissatisfied with the Commission to the President of the The Commission invited public licensing board decisions would be Senate and the Speaker of the House. In comment on its choices and on assured an equal degree of agency response to OCRE's concern that the necessary or desirable procedural appellate review. Commission will be subject to a conflict changes incident to either system as B. Commission Responses to Specific of interest in conducting appellate well as on whether the Commission Comments review, we note that OCRE's objection should make use of an existing is applicable to all agencies with both organization or establish a separate 1. Abolition of the Appeal Panel adjudicatory and staff supervisory office to assist it in performing its OCRE objects to the Commission's functions and i!I not ground for retaining adjudicatory function. The comment decision to abolish the Appeal Panel the Appeal Panel. Moreover the period expired December 10, 1990. Seven and asserts that this decision should not Commission's rules governing ex parte comments were received: four-Crom have been made without advance notice communication and separation of electric utilities or their counsel, one and solicitation of public comments. In functions (10 CFR 2.780 and 2.781) have from an industry organization (Nuclear addition, OCRE notes that Congress, in long and successfully protected the Management and Resources Council transferring the functions of the Appeal integrity of adjudicatory proceedings (NUMARC)), one from a public interest Panel to the CommiBBion at the time it from potential conflicts of the sort group (Ohio Citizens for Responsible enacted the Energy Reorganization Act complained of here. There is no reason Energy (OCREJ) and one from the of 1974, required the Commission to to suppose that these regulations will Department of Energy. Copies of all notify Congress in advance of any not continue to serve their function of comments received are available for decision to abolish the Appeal Panel. assuring the impartiality of the public inspection, and copying for a fee, OCRE believes that the Appeal Panel Commission and its adjudicatory at the NRCPublic Document Room at served an important "separation of employees in agency adjudications. 2120 L Street, NW. (lower level), powers" function because it did not Finally, the availability of oral argument Washington, DC. have the potential conflict of interest in agency appellate review has always Summary of Public Comments inherent in the Commission's dual been, and will continue to be, a matter function of being both an adjudicatory of agency discretion. See 10 CFR 2.763. A. General body and the supervisor of the NRC 2. Mandatory vs. Discretionary Review All industry commenters and the Staff which is frequently a party in Department of Energy supported the adjudications before the Commission. As noted above, all commenters Commission's proposals to adopt a OCRE states that it prefers the system of except OCRE supported adoption of a discretionary review system and a review by appeal boards where discretionary review system. Reasons broad standard of review. These opportunity for oral argument is given emphasized the administrative commenters noted that this system available to the parties. efficiency which will result from the would give the Commission the

• The Commission's decision to abolish Commission having the flexibility to flexibility to involve itself only in cases
• the Appeal Panel was an internal . involve itself only in appeals warranting requiring special Commission attention, management decision concerning which Commission attention, such as cases such as cases involving novel, complex, agency organization would conduct involving particularly novel, complex, or or precedent-setting issues. This would administrative appellate review. In precedent-setting issues or important enhance the Commission's ability to adopting interim procedures for legal, policy, or public health and safety determine how best to allocate its conducting appellate review itself, the questions. In the view of on~ industry resources to carry out its public health Commission explicitly stated that it commenter, a discretionary system, by and safety functions. One industry intended to follow existing procedures giving the Commission the opportunity O-SC-10

I I. PART O STATEMENTS OF CONSIDERATION to focus its attention only on the truly court. Moreover, the expenses of an (1) A finding of a materiel feet is clearly significant cases, will provide more appeal to the Commission and an appeal erroneous; meaningful access to the Commission to a court would be much the same (2) A necessary legal conclusion is without than would a mandatory system unless, as contemplated by OCRE, the governing precedent or is a departure from or contrary to established law; requiring that all cases, including the appellants appear prose before the (3) A substantial and important question of routine or insignificant, come before the Commission but retain counsel in court. law, policy or discretion hes been raised; Commission for review. OCRE, on the Even in such an unusual case, however, (4) The conduct of the proceeding involved other hand, favors a mandatory review it may be possible for the appellants to a prejudicial procedural error; or system. OCRE believes that a argue pro se in court as well. In short, a (5) Any other consideration which the mandatory system will serve to increase potential appellant of an initial decision Commission may deem to be in the public the Commission's direct involvement in is at least as likely to save on expenses interest. (January 13, 1962; 27 FR 377) agency adjudications which was one of by being able to go to court if a petition An industry commenter urged the reasons given for the decision to for Commission review is rejected as by adoption of an additional factor: abolish the Appeal panel. Further, in having to incur the expenses of an OCRE's view, mandatory review will be appeal before the Commission before A conflict in licensing board decisions on a controlling question of law or matter of fact more fair to all parties in NRC judicial review becomes available. necessary for decision. adjudicatory proceedings because all parties will be assured of a thorough 3. Mandatory Review of Licensing Commission review of conflicting Board-NRC Staff Conflicts interpretations of law by different agency review of licensing board decisions without the need to incur the One industry commenter, while licensing boards and reconciliation of expense and delay of judicial review. agreeing that the discretionary review those interpretations, it is argued, would OCRE mentions the filing fee, the costs system is appropriate for most cases, contribute to a more consistent body of of printing and binding the briefs and suggested that the Commission provide NRC precedent. Similarly, the appendix, and the need for legal counsel for mandatory review in a proceeding commenter contends that review where as expenses necessitated by a decision where the licensing board disagrees there are conflicts in material factual to seek judicial review of an initial with the staffs findings and findings (such as the adequacy of a decision. recommendations as to issuance of a particular design used at different The Commission believes that a site permit, design approval, reactors) would enable the Commission, discretionary review system will be construction authorization, operating to reconcile differences between administratively more efficient than a license, combined license, or license licensing boards and would also carry mandatory system for the reasons amendment. This is because such a over the policy embodied in present 10 suggested by the commenter& and will situation would create an intra-agency CFR 2.7B6(b)(4)(ii), wherein the also achieve appropriate involvement of conflict that the commenter believes Commission may take review of an the Commission in agency would warrant mandatory Commission .appeal board decision if it appears that adjudications. While OCRE is review. the appeal board has resolved a factual technically correct that a mandatory The Commission agrees that the issue necessary for decision in a clearly system would bring greater direct circumstance envisioned is one that erroneous manner contrary to resolution involvement of the Commission, the might likely merit Commission review. of that same issue by the licensing

• desirability of direct involvement must However, to make review mandatory in board.

be balanced against a sensible use of such a situation might create the The Commission adopts this the Commission's time and resources. appearance that the staff is a party more suggestion in part. The potential conflict Even in a discretionary system, the equal than others in the adjudicatory between licensing boards as to issues of Commission will examine all licensing proceeding before the licensing board material fact is not explicitly comprised board decisions to determine whether to and might tend to unduly focus the within the review standard but it is take review sua sponte. Where reviJ!W is proceeding on the findings and clearly a reason for the Commission to not taken, a discretionary system will recommendations of the staff as take review. Thus the Commission has have the benefit of expeditiously opposed to those of the applicant on incorporated this part of the bringing the adjudication to an end and whom the burden of proof has commenter's suggestion into enabling a disappointed party to seek traditionally rested at least in initial § 2.786(b)(4) of the final rule. On the judicial review at an earlier point. The licensing cases. Thus the Commission other hand, a potential conflicting direct involvement of the Commission in believes that an exception to the interpretation of law between licensing those cases where review is taken will discretionary review system need not be boards is already a matter comprised be more meaningful because the carved out to deal with this potential within the second or third factor of the significance of the case will be circumstance. January 13, 1962 (27 FR 377) rule. Thus highlighted by the very fact that the the Commission believes that adding Commission has taken review. 4. Standard for Granting Review another factor to address this The Commission does not agree with All commenters addressing the issue circumstance would be redundant. OCRE that is somehow inequitable to supported the Commission's proposed The same commenter also suggested provide review of licensing board adoption of a standard of review similar that the language of the Commission's decisions in some cases but to deny to that employed by the Commission at present standard for taking review of review in others and thus leave some the time the Atomic Safety and appeal board decisions be added, parties with the sole recourse of seeking Licensing Board was established in 1962. perhaps as a footnote, to the standard of an initial merits review in the courts. That standard states: review to emphasize that issues Many disappointed litigants may lose presented for review must be significant The petition for review may be granted in and thus discourage frivolous appeals. again on appeal. Thus such a party the discretion of the Commission, giving due would be saddled with the expense and weight to the existence of a substantial That regulation states: delay of an appeal before the question with respect to such considerations A petition for review of matters of law or Commission as well as an appeal in es the following: policy will not ordin.erily be granted unless it O-SC-11

PART O STATEMENTS OF CONSIDERATION appears the case involves an important be able to request a stay of the decision (OLA-4) and Turkey Point (OLA-5) matter that could significantly affect the pending any merits review by the license amendment proceedings will be environment, the public health and safety, or Commission. The stay motion would be governed by the rules in effect prior to the common defense and security, constitutes governed by the factors specified in 10 an important antitrust question, involves an October 24, 1990. Licensing board important procedural issue, or otherwise CFR 2.788(e). If both a stay and review decisions or actions issued before the raises important questions of public policy. were granted, the licensing action date these amendments become authorized by the decision would not effective are governed by the rules in 10 CFR 2.786(b)(4)(i) (1990). The become effective end the decision would effect prior to October 24, 1990, except Commission does not agree that this not become final agency action. If additional language is necessary to that the Commission will take the place review were granted but a stay denied, of appeal boards under those rules and discourage frivolous appeals. The the licensing action authorized by the standard already provides that the except that the Commission will not decision would be effective but there entertain a petition for review of its own Commission, in determining whether to would be no final agency action as to take review, will give due weight to the decision. the merits of the licensing board existence of a substantial question with decision. A court could review the Environmental Impact: Categorical respect to, among other things, a Commission's stay decision, but not the Exclusion substantial and important question of merits of the licensing board decision. law, policy or discretion. This language The NRC has determined that this The advantage of this alternative final rule is the type of action described should be sufficient to warn potential procedure, in the commenter's view, is appellants that issues presented for in categorical exclusion 10 CFR that it would help streamline the 51.22(c)(1). Therefore, neither an review must be significant. Moreover, licensing process in that there would no coupling the more restrictive language of environmental impact statement nor an longer be an automatic stay of indefinite environmental assessment has been the standard the Commission has used length before ~e licensing board's to determine wqether to take review of prepared for this final regulation. decision is allowed to take effect. appeal board decisions with the more The Commission does not believe that Paperwork Reduction Act Statement flexible language of the January 13, 1962 it would be feasible to set a regulatory (27 FR 377) standard could lead to This final rule contains no information time limit on its decision whether to collection requirements and therefore is confusion as to what standard is really take review of a licensing board being applied. Thus the Commission has not subject to the requirements of the decision of the brevity suggested by the Paperwork Reduction Act of 1980 (44 not adopted this suggestion. commenter due to the wide variety of U.S.C. 3501, et. seq.).

5. Immediate Effectiveness Rule cases, including cases presenting Amendment multiple complex technical or legal Regulatory Analysis issues where the record is voluminous, The Commission's notice of proposed that come before the board. The time The Commission's prior decision to rulemaking noted one potential problem suggested is not adequate for petitions abolish the Appeal Panel which had with adopting a discretionary review . for review, and responses thereto, to be provided administrative appellate system: The possibility that a licensing filed and considered. The Commission's review of initial decisions of presiding board's decision might be appealed to a present rule governing petitions for officers in agency adjudications court without any petition for review review of appeal board decisions (which necessitates the establishment of a new having been submitted to the agency will be retained and applied to licensing system wherein the Commission itself altering the agency to potential board decisions) provides a thirty-day will review initial decisions. On October problems with the decision end giving period for a decision on whether to take

• 24, 1990 (55 FR 42944), the Commission the agency an opportunity to correct review (10 CFR 2.786(b)(5)). The put in place interim procedures for these problems. However, the Commission is establishing a separate conducting this review. In this Commission expressed the view that Office of Commission Appellate rulemaking, the Commission adopts a one way of avoiding this problem would Adjudication with the function of discretionary review system, including a be to continue the Commission's assisting the Commission in the exercise standard whereby the Commission will immediate effectiveness regulation (10 of its appellate review functions. The exercise its discretion whether to take CFR 2.764) which provides an automatic Commission believes that it will be able review of a licensing board decision.

stay of effectiveness of designated to reach a decision on whether to take This system replaces the system of licensing board decisions until the review in an expeditious fashion but mandatory appellate review formerly Commission has reviewed the decision that to impose a severe regulatory time proyided by appeal boards. The cost of to determine whether it should be limit for this decision could interfere the new discretionary review system is allowed to become effective pending with its duty to make sure that no public likely to be leso in all cases where any appellate review of the merits of the health or safety problems are review is not taken the Commission and decision. unresolved before a decision is allowed the parties will not need to expend Two industry commenters addressed to become final. Thus the Commission further time and resources before a final this matter. One favored continuation of has not adopted this suggestion. agency decision is reached. Thus the the present immediate effectiveness These amendments will take effect cost entailed in the promulgation and rule: the other urged that the immediate thirty days after publication in the application of this final rule is necessary effectiveness rule be replaced with en Federal Register. The amendments apply and appropriate. The foregoing alternative procedure whereby the to any licensing board decision or action discussion constitutes the regulatory Commission would have a brief time issued on or after the effective date of analysis for this rule. limit (10 days was suggested) within these rules. Appeals presently pending . Regulatory Flerdbility Certification which to decide whether to review a before en appeal board in the Seabrook licensing board decision authorizing operating license proceeding, Advanced As required by the Regulatory issuance of a construction permit or Medical Systems (Suspension Order) Flexibility Act (5 U.S.C. 605(b)), the operating license for a nuclear power and Wrangler Laboratories enforcement Commission certifies that this rule will reactor. During the period, a party would proceedings, and the Turkey Point not have a significant economic impact O-SC-12

I PART O

• STATEMENTS OF CONSIDERATION upon a substantial number of small 58 FR 3825 553(d)(3)). Delaying the effective deli! of entities. Many applicants, licensees and Published 1/12/93 this nile would be contrary t.o 'the public intervenors fall within the definition of Effective 2/3/93 interest because it would be confusing small businesses found in section 34 of for regulations which have been the Small Business Size Standards set superseded to remain In effect beyond out in regulations issued by the Small 10 CFR Part 0 February 3, 1993.

Business Administration at 13 CFR part RIN31~E47 Envinmmental Impact: Categorical 121, or the NRC's size standards Exclusion

• published December 9, 1985 (50 FR Conduct of Employees; Conforming 50241). In a discretionary review system, Amendments The NRC has determined that this the procedural requirements on final rule is the t.ypa of action described AGENCY: Nuciear Regulatory in categorical exclusion 10 CFR licensees or intervenors may be reduced Commission.

because they will not need to fully brief 51.2Z(c)(1). Therefore, neither en

• errors of fact or law that they may ACTION: Final rult,. environmental assessment nor an perceive in a presiding officer's decision environmental impact statement has

SUMMARY

The Nuclear Regulatory prior to seeking judicial review unless Commission ("NRC" or "Commission") been prepared for the final regulation.

the Commission first determines to take is amending its regulations governing Paperwork ~eduction Act Statement review of the decision. Licensees and the conduct of NRC employees. This intervenors will, however, need to file This final rule contains no amendment removes provisions which information collection requirements and petitions for discretionary review with have been superseded by recently the Commission if they perceive errors therefore is not. subject to the issued Office of Government Ethics  !""quirements of the Paperwork in the presiding officer's decision and (OGE) regulations, which take effect on intend to seek jupicial review. aeduction Act of 1980 (44 U.S.C. 3501 February 3, 1993. et seq.). Backfit Analysis EFFECTIVE DATE: February 3, 1993. Regulatory Analysis The NRC has determined that the FOR FURTHER INFORMATION CONTACT: backfit rule, 10 CFR 50.109, does not L. Mich eel Rafky, Office of the Geneml The Nuclear Regulatory Commission apply to this final rule, and therefore, Counsel, U.S. NucleeT Regulatory is eliminating regulations that have been that a backfit analysis is not required for Commission, Washingtou, ~ 20555, superseded by the Office of Government this final rule, because these telephone: 301-504-1606. Ethics' government-wide standards of amendments do not involve any conduct regulations. This rule has no SUPPLEMENTARY INFORMATION: significant impact on health. safety or provisions which would improve backfits as defined in 10 CFR Background the environment. There is no substantial 50.109(a)(1). cost to licensees, the NRC, or other On August 7, 1992 (57 FR 35006), the Federal agencies. IJst of Subjects Office of Government Ethics published its final rule establishing government- Backlit Analysis WCFRPartO wide standards of conduct for executh*e The NRC has determined that the Conflict of interest, Criminal penalty. branch employees. These regulations, backfit rul~, 10 CFR 50.109, does not which ore codified et 5 CFR pert 2635, apply to this final role and that a backfit 10CFRPart1 toke effect on February 3, 1993, end will analysis is not required for this final Organization and functions supplant Nuclear Regulatory rule, because these supplemental (Government agencies). Commission standords of conduct regulations do not involve any regulations. Section 2635.105 of that provisions which would impose backfits 10CFRPart2 final rule permits individual agencies to as defined in 10 CFR 50.109{a)(1). Administrative practice and issue jointly with OGE supplemental procedure, Antitrust, Byproduct regulations to address particlilar agency List of Sab;ecls la 10 Qll Pert o material, Classified information, needs.

• Environmental protection, Nuclear The purpose of this rule is to abrogate
• Confflct of interest, Crlniinal.penalty.

materials, Nuclear power plants and those portions of the NRC's standard of For the T&asons set out in 'the reactors, Penalty, Sex discrimination, conduct regulations, codified at 10 CFR preamble and under the authority *of the Source material, Special nuclear part 0, which will be superseded by the Atomic Energy Act of 195.4, as amended, material, Waste treatment and disposal. government-wide regulations. The NRC and 5 U.S.C. 552 and 553; the NRC is hes retained those provisiODS which adopting the following amendments to For the reasons eet out in the 10 CFR part o. preamble and under the authority of the will likely be subjects of supplemental Atomic Energy Act of 1954, ae amended, regulations or .nilate to proceaural issues. the .Energy Reorganization Act of 1974, to be addressed in fortlu:oniing internal as amended, and 5 U.S.C. 552 and 553, NRC Management Directives. the Nuclear Regulatory Commission is Because lhe NRO is required to- delete adopting the following amendments to superseded provisions of 10 CFR part o 10 CFR parts O, 1, and 2. with no discretion in the melter, tlie

• NRC finds, pursuant to 5 U.S.C. .

553(b)(B), that there is good cause not to seek public comment on this rule, as such comment is unnecessary. The rule will become effective on February 3, 1993, the date the OGE regulations take effect. The NRC also finds that good cause exists to waive the 30-day deferred effective date provlsions of the Administrative-Procedure Act ts U.S.C. O-SC-13

1I PART O* STATEMENTS OF CONSIDERATION I 58 FR 29951 Environmental Impact: Categorical Published 5/25/93 Exclusion Effective 6/24/93 NRC hes determined that this final rule is the type of action described in 10CFR PartO categorical exclusion 10 CFR RIN 3150 - AE65 51.22(c)(l). Therefore, neither an environmental assessment nor an Repeal of NRC Standards of Conduct environmental impact statement has Regulations been prepared for the final regulation. AGENCY: Nuclear Regulatory Paperwork Reduction Act Statement Commission. This final rule contains no ACTION: Final rule. information collection requirements and therefore is not subject to the 59 FR 17457

SUMMARY

The Nuclear Regulatory requirements of the Paperwork Commission (NRC) is amending its Published 4/13/94 Reduction Act of 1980 (44 U.S.C. 3501 Effective 7/12/94 regulations to repeal those delegations et seq.).

of authority and other miscellaneous regulations in 10 CFR part O that are Regulatory Analysis now contained in NRC internal The Nuclear Regulatory Commission 5 CFR Chapter XLVIII Management Directives and Handbooks is eliminating regulations that have been

• or are no longer necessary. These superseded by the Office of Government 10 CFR PartO internal docu111ents were issued Ethics' government-wide* standards of RINs 3209-AA'l5 and 3150-AESO following the prom~lgetion of conduct regulations. This rule has no government-wide ethics regulations by significant impact on health, safety or. Supplemental Standards of Ethical the Office of Government Ethics (OGE). the environment. There is no substantial Conduct for Employees of the Nuclear The new OGE regulations have largely cost to licensees, NRC or other Federal Regulatory Commission supplanted NRC's own ethics agencies.

regulations. AGENCY: Nuclear Regulatory EFFECTIVE DATE: June 24, 1993, Beckfit Analysis Commission. FOR FURTHER INFORMATION CONTACT: L. NRC bas determined that the backfit ACTION: Final rule. Michael Refky, Office of the General rule, 10 CFR 50,109, does not apply to

SUMMARY

The Nuclear Regulatory Counsel, U.S. Nuclear Regulatory this final rule and that a backlit analysis Commission (NRC), with the Commission, Washington, DC 20555, is not required for this final rule, concurrence of the Office of telephone: 301-504-1606. because these deletions of regulations Government Ethics (OGE), is issuing SUPPLEMENTARY INFORMATION:

do not involve any provisions which regulations fo1* employees of the Nuclear would impose backfits as defined in 10 Regulatory Commission that Background CFR 50.109(a)(1), supplement the Standards of Ethical On August 7, 1992 (57 FR 35006), the List of Subjects In 10 CFR Part 0 Conduct for Employees of the Executive Office of Government Ethics published Branch issued by OGE. These its final rule establishing government* Conflict of interest, Criminal supplemental regulations address wide standards of conduct for executive penalties. outside employment by NRC employees branch employees. These regulations, For the reasons set out in the and ownership of securities by NRC which ere codified at 5 CFR part 2635, preamble and under the authority of the employees, their spouses, and minor look effect on February 3, 1993, and Atomic Energy Act of 1954, as amended, children. The NRC is also repealing its supplanted a substantial portion of and 5 U.S.C. 552 and 553, NRC is current regulations on those subjects, Nuclear Regulatory Commission adopting the foilowing amendments to while adding 11 cross-reference to the standards of conduct regulations. 10 CFRpartO, new provisions and preserving certain OGE asked the Commission to remove separable financial interest exemptions. its internal procedures and delegations EFFECTIVE DATE: Final rule effective July of authority from 10 CFR part O and __ 12, 1994. place them in internal agency FOR FURTHER INFORMATION CONTACT: John documents. See S CFR §.2635.105 Szabo, Office c,f the General Counsel, (1992). Having now.issued the necessary U.S. Nuclear Regulatory Commission, Management Directives and Handbooks, Washington, DC 205S5, telephone: 301-NRC is deleting the applicable 504-1606. delegations of authority from, and other portions of, its remaining regulations in SUPPLEMENTARY INFORMATION: 10 CFR part O. Because NRC is required I. Background to delete those portions of 10 CFR part o that have been superseded by OGE On August 7, 1992, the Office of regulations, NRC finds, pursuant to 5 Government Ethics published the U.S.C. 553(b)(B), that there is good Standards of Ethical Conduct for cause not to seek public comment on Employees of the Executive Branch this rule, as such comment is (Standards) for codilc:ation at 5 CFR part unnecessary. 2635. See 57 FR 35006-35067, as 0-SC-14

                                     .PART O* STATEMENTS OF CONSIDERATION corrected at 57 FR 48557 and 57 FR          and other securities issued by major               divest any security interest newly added 53583. These Standards, which took          entities in the commercial nuclear field.          to the agency's prohibited security list; effect on February 3, 1993, set uniform     Section 5801.102 imposes very similar              and a "reasonable time" to dispose of ethical conduct standards applicable to     restrictions upon designated employees,            securitj~s inherited by gift. Consistent all executive branch Eersonnel.             their spouses and ininor children, based           with 5 CFR 2635.403(d), the final rule 5 CFR 2635. 105 authorizes executive     upon the Commission's determination                provides a uniform 90-day period for agencies, with concurrence from OGE,        that these restrictions are necessary to            divestiture, with extension available in to publish agency-specific supplemental maintain public confidence in the                      cases of undue hardship.

regulations that are necessary to impartiality and objectivity with which The criterje in § 5801.102(e) for implement their ethics programs. The the NRC executes its regulatory waiving the prohibition on holding a Nuclear Regulatory Commission, with. functions. The restrictions also will help specific security have been modified to OGE's concurrence, has determined that to maintain public confidence that provide greeter specificity. A criterion the following supplemental regulations, sensitive information relating to agency has been newly added to cover being codified in new chapter XLvm of operations is not misused for private circumstances in which legal 5 CFR, consisting of part 5801, are gain and will help accomplish the constraints prevent divestiture. One necessary for successful implementation NRC's mission by avoiding widespread example of such a legal constraint of the NRC's ethics program. By this disqualification of employees from the would be the situation in which the notice, the Nuclear Regulatory perfonnance of their official duties. prohibited security is held es part of the Commission*is also repealing the parts Section 5801.102 is.narrower in scope assets of a trust of which the employee of its regulations which were preserved than 10 CFR 0.735-29 in that it does not is a beneficiary and where the trustee, by 5 CFR part 2635 pending issuance of apply to all members of the employee's who has sole authority to purchase and this supplemental regulation (see the household. Consistent with 5 CFR ..sell the assets, refuses the employee's* additional OGij grace period extension 2635.403(a) and 2635.403{c)(l), it request to sell the prohibited security. at 59 FR 4779-4780). restricts only the holdings of designated employees, their spouses, and minor The Commission has eliminated the II. Analysis of the Regulations children. The Commission hes requirement contained in 10 CFR 0.735-Section 5801.101 General determined that application of the 29 that employees who are subject to the securities restrictions in§ 5801.102 to security ownership restrictions certify Section 5801.101 explains that the each year that they are in compliance. regulations contained in the final rule spouses and minor children is necessary to the efficiency of the service. As Because the annual certifications have apply to all NRC employees, including rarely revealed violations of the members of the Commission, and are evidenced by to CFR 0.735-29, the NRC believes it is important to the success of substantive restrictions, there is supplemental.to the executive branch- inadequate justification for continuing wide standards. Members and its mission for regulated entities and others affected by agency decisions to this requirement. However, to monitor employees of the Nuclear Regulatory .compliance, the NRC will continue to Commission also are subject to the have this additional degree of assurance that agency decisions ere not influenced require employees holding designated Standards of Ethical Conduct for by considerations of personal gain on positions to certify compliance upon Employees of the Executive Branch at 5 the part of NRC personnel. commencement of employment with the CFR part 2635, the executive branch In addition to limiting the section's agency or upon promotion for the first financial disclosure regulations at 5 CFR application to employees, their spouses, timl! to a position covered by the part 2634, and additional regulations security ownership restriction. Agency regarding their conduct published by and minor children, the Commission hes made other minor revisions to the employees.will also be required to the agency in 10 CFR part O. report to the Office of the General restrictions es stated in 10 CFR 0.735-Section 5801.102 Prohibited Securities 29. The categories of prohibited Counsel in wriUng any prohibited 5 CFR 2635.403(a) authorizes securities set forth in§ 580t.102(b) have securities obtained after the initial been revised to reflect the new types of certification. This will permit the Office agencies, by supplemental regulation, to of the General Counsel to track required prohibit or restrict the acquisition or licenses established in 10 CFR part 52 and to include securities issued by State divestitures. holding of a financial interest or a class of financial interests by agency or local governments to finance low- On the effective date of this employees based on a determination level waste facilities. Section regulation, the NRC will issue that the acquisition or holding of such 5801.102(b)(8) also prohibits employees . Management Directive 7.7 and its interests would cause reasonable for the first time from owning securities accompanying Handbook which lists persons to question the impartiality and issued by an energy or utility sector *those agency positions.covered by the objectivity with which agency programs mutual fund that has invested more security owne~p restrictions. The are administered. Where it is necessary than 25 percent of the fund's assets in Handbook will also describe procedures to the efficiency of the service, such prohibited securities. for obtaining Certificates of Dtvestiture prohibitions or restrictions may be The time frames for complying with and waivers from the security extended to employees' spouses and the security ownership regulations have ownership restrictions. Both the minor children. also been modified. Under 10 CFR Management Directive and Handbook By 10 CFR 0.735-29, the Commission _0.735-29, NRC employees have had 30 will be available at the NRC Public hes long prohibited most of its days to comply after commencing DoCllDlent ROQm, 2120 L Street, NW.; emploY1185, their spouses. minor employment or being promoted to a Washington, .DC 2055!H>001. Copies children, and other members of their position covered by the security will also be available in each NRC

• Officti, . .. .

households, from holding stocks, bonds, ownership prohibitions; one year to O-SC-15

PART O* STATEMENTS OF CONSIDERATION Section 5801.103 Prior Approval for regulations in a different form, and the 10CFRPartO Outside Employment regulations pertain wholly to internal Conflict of Interests, Criminal 5 CFR 2635.803 authorizes individual agency personnel matters that affect penalties. agencies, by supplemental regulation, to only NRC employees, their spouses, and Dated at Rockville; Maryland. this 23rd day require agency employees to obtain minor children. To increase the of March, 1994. *

• approval before engaging in outside likelihood of a smooth transition from For the Jlluclear Regulatory Commission.

employment or other outside activities. the NRC's prior ethics rules to the new Samuel J. Chllk, The NRC has long had the prior Government-wide standards of ethical conduct regulations, these rulemaking Secretary of the Commis~lon. approval requirement, set'forth in 10 Approved: Match 31, 1994. CFR0.735-40. Section 5801.103 ofthe actions should take place as soon as possible. The rule and accompanying Stephen D. Potts, final rule retains the requirement that NRC employees obtain prior written repeals will become effective 90 days Director. Office of Government Ethics. approval before engaging in outside after the date of publication in the For the reasons set forth in the employment with entities that are Federal Register. preamble, the Nuclear Regulatory ." regulated by or have business with the Commission, with the concurrence of Environmental Impact: Categorical the Office of Government Ethics, is Commission. The NRC policy has been, Exclusion

• amending title 5 of the Code of Federal and will continue to be, to encourage teaching, lecturing, or writing not The NRC has determined that this Regulations and title 10, chapter I, of the
• final rule is the type of action described Code of Federal Regulations as follows:

prohibited by 5 CFR part 2635 or*other applicable law. in categorical exclusions 10 CFR TITLE 5-(AMENDED] The agency designees for approval of 51.22(c) (1) and (2). Therefore, neither outside employment and internal an environmental assessment nor an 1. A new chapter XLVIII, consisting of agency procedUfeS for obtaining the environmental impact statement has part 5801, is added to title 5 of the Code necessary approvals will be set forth in been prepared for this final regulation. of Federal Regulations to read as NRC Management Directive 7.8 and the Paperwork Reduction Act Statement follows: accompanying Handbook. This SCFR CHAPTER XLVIII-NUCLEAR Directive and Handbook will be issued This final rule contains no REGULATORY COMMISSION on the effective date of this regulation information collection requirements and and will be available in the NRC Public therefore is not subject to the

• PART 5801~UPPLEMENTAL Document Room and in each NRC requirements of the*Paperwork *
• STANDARDS OF ETHICAL-CONDUCT Office. Reduction Act of 1980 (44 U.S.C. 3501 FOR EMPLOYEES OF THE NUCLEAR et seq.).
• REGULATORY COMMISSION

m. Repeal of Superseded Portions of the NRC Conduct Regulations and Regulatory Analysis Sec.

Related Modifications 5801.101 General. The NRC is promulgating a 5801.102 Prohibited securities. The final rule repeals the NRC supplemental regulation to OGE's 5801.103 Prior approval for outside conduct regulations 10 CFR 0.735-8, Government-wide standards of conduct employmenL 0.735-29, and 0.735-40, effective on the regulations in order to implement Authority: 5 U.S.C. 7301; 5 U.S.C. App. same day that this rule takes effect. The effectively the NRC's ethics program. (Ethics in Govemment Act or 1978); 42 information collection requirements of This rule has no significant impact on U.S.C. 2201, 5841; E.O. 12674, 54 FR 15159, § 0.735-8 are no longer necessary. health, safety or the environment. There 3 CFR. 1989 Comp., p. 215, as modified by Section 0.735-29 will be superseded by is no substantial cost to licensees, the E.O. 12731, 55 FR 42547, 3 CFR. 1990 Comp.* the prohibitions on securities contained p. 306, 5 CFR 2635.105. 2635,403. 2635.803. NRC, OGE, or other Federal agencies. in 5 CFR 5801.102 and§ 0.735-40 will § 5801. 101 General. be superseded by the requirements for Regulatory Flexibility Act prior approval of outside employment In accordance with 5 CFR 2635.105, As required by the Regulatory the regulations in this part apply to contained in 5 CFR 5801.103. These Flexibility Act of 1980, 5 U.S.C. 605(b), members and other employees of the repeals, together with those effected by the Commission certifies that this rule Nuclear Regulatory Commission and 58 FR 3825 and 29951, leave in 10 CFR will not have a significant economic supplement the Standards of Ethical part O only the waiver provisions of impact on a substantial number of small §§ 735-21 (a) and (b) which are Conduct for Employees of the Executive entities because it affects only NRC Branch contained in 5 CFR part 2635. In preserved by 5 CFR 2635.402(d)(1). employees. These paragraphs are redesignated addition to tho standards in 5 CFR part § 0.735-2 (a) and (b) to follow a new Backftt Analysis 2635 and this part, members and other § 0.735-1 which provides a cross- employees are subject to the executive reference to the NRC's supplemental The NRC has detemiined .that the

• branch financial disclosure regulations regul~tion and to the executive branch- baclditrule, 10 CFR 50.109, does not contained in 5 CFR part 2634 and to wide financial disclosure and standards apply to this final rule and that a backfit additional regulations regarding their of ethical conduct regulations at 5 CFR analysis is not required for this final conduct contained in 10 "CFR part O.

parts 2634 and 2635. rule because these supplemental

                                                                                          § 5801.102     Prohibited securities.

regulations do not involve any IV. Matters of Regulatory Procedure provisions which would impose backfits (a) General prohibition. No covered as defined in 10 CFR 50.109. employee, and no spouse or minor child Administrative Procedure Act or a covered employee, shall own Pursuant to 5 U.S.C. 553(b), the NRC List of Subjects securities issued by an entity on the list finds good cause not to seek public 5 CFR Part 5801 described in paragraph (b) of this comment on this rule. Such comment is section. unnecessary because the NRC is *Conflict of interests, Government (b) Prohibited securities list. Once a essentially repromulgating existing

• employees. yr.ar, or on a more frequent basis, the O-SC-16

PART O* STATEMENTS OF CONSIDERATION Commission will publish and distribute debentures, notes, securitized assets and Commission*maye:xtend the 90 day to employees a list of entities whose commercial paper, as well as all types period for divestiture specified in securities a covered employee or the of preferred and common stock. The paragraphs (d)(l) through (d)(3) of this spouse or minor child of a covered term encompasses both current and section. \I employee may not own. The list shall consist of entities which are: (1) Applicants for or holders of early site permits, construction permits, operating licenses, or combined contingent ownership interests, including any beneficial or legal interest derived from a trust. It extends to any right to acquire or dispose of any long or short position in such securities and (5) Disqualification pending divestiture. Pending divestiture of prohibited securities, a covered employee*must disqualify himself or herself,.in accordance with 5 CFR

\

construction permits and operating . includes, without limitation, interests 2635.402, from participation in licenses for facilities which generate convertible into such securities, as well particular matters which, as a result of electric energy by means of a nuclear as options, rights, warrants, puts, calls, continued ownership of the prohibited reactor; and straddles with respect thereto. securities, would affect the financial (2) State or local governments, if the (d) Divestiture and reporting of interests of the employee, or those of the primary purpose of the security is to prohibited securities.--{1) Newly spouse or minor child of the employee. finance the construction or operation of covered employees. Upon promotion or Disqualification is not required where a a nuclear reactor or a low-level waste other appointment to a position subject waiver described in 5 CFR 2635.402(d) facility; to the securities prohibition of this applies. Procedures for obtaining (3) Entities manufacturing or selling section, a covered employee shall sign individual waivers are contained in nuclear power or test reactors; .a certification: NRC Handbook 7.7, which is available (4) Architectural.engineering (i) Identifying securities of an entity in the NRC Public Document Room, companies providing services relating to on the prohibited securities list which a nuclear power reactor: the employee, or the spouse or minor (6) Tax treatment of gain on divested (5) Applicants for, or holders of, a child of the employee, owns, or securities..Where divestiture is required certified standard design; (ii) Stating that the employee, or the by this section, the covered.employee (6) Entities licensed or regulated by spouse or minor child of the employee, (except a special Goyernment employee) the Commission to mill, convert, enrich, does not own any prohibited &ecurities. may be eligil>le to defer the tax fabricate, store. or dispose of source, consequences of divestiture under Except as provided in paragraph (d)(4) subpart J of 5 CFR part 2634, pursuant byproduct, or special nuclear material, of this section, the newly covered or applicants for such licenses that are to procedures in NRC Handbook 7 .7, employee, or the spouse or minor child which is available in the NRC Public designated by the Commissio~ because of the employee, shall divest prohibitnd they are or will be substantially engaged securities within 90 days after Document Room. in sur.h nuclear fuel cycle or disposal appointment to the covered position. (e) Waivers. (1) The Chairman may activities; (2) Newly prohibited securities. grant a waiver to permit a covered (7) The parent corporation of any Within 30 days after publication of the employee, or the spouse or minor child subsidiary described in paragraphs prohibited securities list to which an of a covered employee, to retain (b)(l)-(b)(6) of this section; and entity's name bas been added, a covered ownership of a security of an entity on (8) An energy or utility sector employee who owns, or whose spouse the prohibited securities list upon a investment fund which bas more than or minor child owns, prohibited determination that the holding of the 25% of its assets invested in securities security ls not inconsistent with 5 CFR securities shall make a written report of issued by entitles described in that ownership to the Office of the part 2635.or otherwise prohibited by paragraphs (b)(1Hb)(7) of this section. General Counsel. Except as provided in law, and that: (c) Definitions. For purposes of this paragraph (d)(4) of this section, the section: (i) Under the circumstances, (1) A covered employee means: covered employes, or the spouse or application o,fthe prohibition is not (i) A member of the Commission; minor child of the covered employes, necessary to ensure confidence in the (ii) The Inspector General of the NRC; shall divest prohibited securities within impartiality and objectivity with which (iii) A member of the Senior Executive 90 days after publication of the NRC programs are administered; Service (SES); prohibited securities list. (ii) Legal constraints prevent (iv) An employee who holds a non- (3) Securities acquired without divestiture: or SES position above GG-15; end specific intent. Within 30 days after a covered employee, or the spouse or (iii) For a special Government (v) Any other employee, including a employee, divestiture would re~ult in special Government employee, whose minor child of a covered employee, acquires securities of an entity on the substanti_al financial hardship. duties and responsibilities, as determined by the Commission or its prohibited securities list as a result of . (2)Where a waiver has been granted designees, require application of the marriage, inheritance, gift or otherwise under pamgraph (e)(l) of this section, securities ownership prohibition without specific intent to acquire the the covered employee must disqualify contained in this section to ensure securities, the covered employee shall himself or herself, in accordance with 5 public confidence that NRC programs make a written report of the acquisition CFR 2635.402, from participation in are conducted impartially and to the Office of the General Counsel. particular matters which, as a result of objectively. The positions of these Except as provided in paragraph (d)(4) continued ownership of the prohibited employees are specified in NRC . of this section, a covered employee, or security, would affect the financial Management Handbook 7.7, which is the spouse or minor child of a covered interests of. the employee, or those of the available in the NRC Public Document employee, shall divest prohibited spouse or minQr child of the employee Room;and securities within 90 days after the date unless the employee has received a (2) The term "securities" includes all ofacquisition. waiver described in 5 CFR 2635.402(d), interests in debts or equity instruments. (4) Extension of period to divest. ptµSUant to procedures in NRC The term includes, without limitation. Upon a showing of undue hardship, the Handbook 7.9, which is available-in the secured and unsecured bonds, Chairman of the Nuclear Regulatory NRC Public Document Room. O-SC-17

PART O* STATEMENTS OF CONSIDERATION § 5801.103 Prior approvalfor outside § 0.735-1 Cross-reference to employee employment. ethical conduct standards and financial disclosure regulation& .. (a) An employee, other than a special Government employee, shall obtain . Employees of the Nuclear Regulatory written authorization before engaging in Commission (NRC) are subject to the compensated outside employment with: executive branch-wide Standards of (1) A Commission licensee; Ethical Conduct at 5 CFR part 2635, the NRC regulation at 5 CFR part 5801

. (2) An applicant for a Commission             which supplements the executive license;                                         branch-wide standards, and the
 * (3) An organization direc;tly engaged        executive branch-wide financial in activities in the commercial nuclear          disclOS\lf8 regulations at 5 CFR part field;                                           2634. .

(4) A Commission contractor;

4. Section 0.735-21 is redesignated as (5) A Commission supplier; §.0.735-2 and the heading is revised to (6) An applicant -for or holder of~

• read thereof, "Exemptions for financial license issued by a State pursuant to an interests."

agreement between the Commission and the State.; § 0.735-8, 0.735-29 and 0.73MO (7) A trade association which [Removed). represents clients concerning nuclear 5. Sections 0.735-8, 0.735-29 and matters; or 0.73540 are ~moved. (8) A law firm or other organization which is participating in an NRC proceeding or which regularly represents itself or clients before. the NRC. . * (b) Requests for approval shall be submitted in writing to the agency designee specified in NRC Management Directive 7 .8, which is available in the NRC Public Document Room, in

• accordance with procedures set forth in the accompanying NRC.Handbook. .

(c) Approval of outside employment shall be granted in writing*only upon.a determination by the agency ,;lesignee that the proposed outside 8It1P'10yment would not violate a Federal sµ1tute or

• regulation, including 5 CFR 2635.

(d) For purposes of this section, "outside employment" means any form of non-Federal employment, business relationship or activity, involving the provision of personal services by the employee. It includes, but is not limited to. personal services as* an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher or speaker. 10 CFR CHAPTER I-NUCLEAR REGULATORY COMMISSION

• PART 0-CONDUCT OF EMPLOYEES

2. The authority citation for part O is revised to read as follows:

Authority: Secs. 25. 161, 68 Stat. 9925, 948, as amended '(42 U.S.C. 2035, 2201'): sec. 2q1, 88 .StaL 1242, as amended (42 U.S.C. 5841): E.O; 12674, 54 FR 15159, 3 CPR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CPR, 1990 Comp., p. 306, 5 CPR

• 2635.105 and '2635.402(d)(1). Section.0.735-2, also *Issued under 5 U.S.C. 552, 553.

3. A new §0.735-1 is added to read LIS follows: *.

• O-SC-18

UNITED STATES NUCLEAR REGULAT~RY COMMISSION RULES and REGULATIONS TITLE 10, CHAPTER 1. CODE OF FEDERAL REGULATIONS-ENERGY rn

 .               STATEMEN_T OF ORGANIZATION AND
                  ~ .

GENERAL . INFORMATION

                §"(ATEMENTS OF CONSIDE.RAJLQN 52 FR 31601 Published 8/21/87 Effective 8/19/87

• 10 CFR Parts 0, 1, 2, 7, 9, 10, 11, 15, 19, 20, 21, 25, 30, 35, 40, 50, 51, 60, 61, 70,
• 71, 72, 73, 74, 75, 95, 150, and 170 Statement of Organization and General Information AGENCY: Nuclear Regulatory

Commission,

ACTION: Final rule.

SUMMARY

The Nuclear Regulatory Commission (NRC) is revising its regulations pertaining to its statement of organization and general information.

The revision is necessary to reflect the completion of a major reorganization. The revision is also necessary to fulfill the NRC's obligation under the Freedom of Information Act (5 U.S.C. 55Z(a)(1J(AJJ to publish in the Federal Register descriptions of its headquarters and field organizations and to inform industry and the interested public of these organizational changes. EFFECTIVE DATE: August 19, 1987. FOR FURTHER INFORMATION CONTACT: Donnie H. Grimsley, Director, Division of Rules and Records, Office of Administration and Resources

                                                     .¥_anagement, U.S'. Nuclear Regul_atory 1-SC-1

PART 1

• STATEMENTS OF CONSIDERATION Commission, Washington, DC 20555, environmental assessment has been NRC published a general notice Telephone: 301-492-7211. prepared for this final rule. announcing that as of December.21, SUPPLEMENTARY INFORMATION: On July Paperwork Reduction Act Statement 1987, several of the NRC's Headquarters 18, 1977, 10 CFR Part 1, "Statement of Offices {i.e., the Office of Enforcement, Organization and General Information," This final rule contains no information the Office of Special Projects, and the was promulgated (42 FR 36797). During collection requirements and, therefore, Bethesda-based portion of its Office of the past 10 years, Part 1 has been is not subject to the requirements of the the General Counsel) had relocated to a amended over 20 times; but the entire Paperwork Reduction Act of 1980 (44 new building at One White Flint North part has never been completely revised. U.S.C. 3501 et seq.) in Rockville, Marvland. In addition, a Until the April 12, 1987 reorganization, Regulatory Analysis recent reconsolidation of the NRC's past reorganizations had a real, yet Office of Nuclear Regulatory Research small, impact on the content of Part 1. Because this final rule has no {RES) resulted in the acquisition of a The new reorganization has altered economic impact on the public and only portion ofa new building and a slight virtually the entire part, with the a modest economic impact on the NRC change in the name of the building that creation of entirely new offices, the for resources to prepare the final rule,
• formerly housed all of RES. This consolidation of other offices, and the no regulatory analysis has been prepared. amendment codifies those changes.

elimination of still others. Because this amendment .deals solely In its revision of Part 1, the NRC has Backfit Analysis with the revised location of some of revamped the text of the older version in This final rule pertains solely to the NRC's Headquarters Offices, the notice order to present the information in plain organization of the NRC; therefore, no and comment provi11ions of the English, a departure from the more backfit analysis has been prepared. Administrative Procedure Act do not formal style of the old text. As a model, apply under 5 U.S.C. 553(b)[I\). This the NRC patterned the revision on the List of Subjects in 10 CFR Parts O, 1, 2, 9, amendment is effective upon publication office-level functional descriptions 15, 21, 150, and 170 in the Federal Register. Good cause

• found in NUREG-8325 (Revision 10), Organization and functions exists to dispense with the usual 3D-day "NRC Functional Organization Charts," (Government agencies). delay in the effective date, because this published on February 6, 1987, which amendment is of a minor and contains more detailed descriptions of For the reasons set out in the preamble and under the authority of the administrative nature, dealing with the the functional responsibilities of NRC's revised location of some of theNRC's offices. 1 NUREG--0325 is revised Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, Headquarters Offices.

annually to reflect changes in the functions of NRC offices. Should as amended, and 5 U.S.C. 553, the NRC Environmental Impact: Categorical changes in NUREG--0325 impact the is adopting the following revision of 10 Exclusion

• descriptions contained in Part 1, a CFR Part 1 and conforming amendments to 10 CFR Parts 0, 2, 7, 9, 10, 11, 15, 19, The NRC has determined that lhis corresponding revision will be made in final rule is the type of action described Part 1. 20,21,25,30,31,34,35,40,50,51,60,61,

                                                  .70, 71, 72, 73, 74, 75, 95, 150_, and 170. in categorical exclusion 10 CFR Conforming amendments are being                                                                51.22(c){2), 1'terefore, neither an made to other affected parts where                53 FR 1744                                      environmental impact ~tatement nor an current information permits. In the               Published 1/22/88                               environmental assessment has been

• future, as the NRC moves toward Effective 1/22/88 prepared for this final rule.

completion of its consolidation to a new location, other changes will be made to 10 CFR Part 1 Paperwork Reduction Act Sta1emelit reflect address changes. This final rule contains.no information Because these amendments deal Revision of Headquarters Office collection requirements and therefore is solely with agency organization and Locations

• not subject to the requirements of the procedure, the notice and comment Paperwork Reduction Act of 1980 (44 provisions of the Administrative AGENCY: Nuclear Regulatory Commisston. U.S.C. 3501 et seq.).

Procedure Act do not apply under 5 U.S.C. 553(b)(A). The amendments are ACTION: Final rule. List of Subjects in 10 CFR Part 1 effective upon publication in the Federal Organization and functions. Register. Good cause exists to dispense

SUMMARY

The Nuclear Regulatory Commission [NRC) is amending its For the reasons set out in the with the usual 30-day delay in the preamble and under the authority of the effective date, because the amendments regulations pertainingfo its statement or organization and general information to Atomic Energy Act of 1954, as amended, are of a minor and administrative nature amend the name of one of its the Energy Reorganization Act of 1974, dealing with the agency's organization. as amended, and 5 U.S.C. 553. the NRC Headquarters Office Buildings and to

.Environmental Impact: Categorical add two new office locations to its list of is adopting the following amendment to Exclusion offices. This amendment is being made 10 CFR Part il. The NRC has determined that this to inform NRC licensees and members final rule is the type of action described of the public of these changes. 53 FR 3861 Published 2/10/88 in categorical exclusion 10 CFR EFFECTIVE CATE: January 22. 1988. Effective 2/10/88 51.22(c)(1). Therefore, neither an FOR FURTHER INFORMATION CONTACT: environmental impact statement nor an Donnie H. Grimsley. Director, Dii.'ision 10 CFR Parts 1, 20, 30, 40, 55, 70, and of Rules and Records, Office of 73

• NUREG--0325 is available for inspection and Administration and Resources copying for a fee at the NRC Public Document Room 1717 H Street NW .. Washington DC 20555. NUREG- Man11gement, U.S. Nuclear Regulatory Change of Region I Add.ress 0325 may be purchased from the Superintendent of Commission. Washington, DC 20555, Documents, U.S. Government Printing Office, P.O. Telephone: 301-492-7211. AGENCY: Nuclear Regulatory
• Box 37082, Washington, DC 20013-7082; or the Commission.

National Technical Information Service, 5285 Port SU?PLEMENTAAY INFORMATION: On Royal Road, Springfield VA 22161_. Decel)lber 29, 1987 (52 FR 49100), the ACTION: Final rule. 1-SC-2

PART 1

• STATEMENTS OF CONSIDERATION

SUMMARY

On January 14. 1988, t.he .. 10 CFR Puri 20 t'new address is necessitated by the Nuclear Rcj!ulatory Commission (NRC) Byproduct material. Licensed relocation of the NRC's Commission-announced that its R~gion I Offic~ had material. Nuclear materials. Nuclear level offices to the agency's new moved to a new location in King of power plants and reactors, Occupational headquarters office building in Prussia, Pcnnsvlv1mia. These 0

s.ifoty and health. Packaging and Rockville, Maryland. These amendments amendments are being made to re\*isc containers. Penalty, Radiation are being made to inform NRC licensees NRC's regulations containing Regional protection. Reporting and recordkeeping . and members of the public of this new Office addresses lo reflect the new requirements, Special nuclear materials. address. address for Region I. The amendments Source maierial. Waste treatment and* EFFECTIVE DATE: May 19, 1988. are necessary to inform the public and disposal.

• iiffected licensees of the change of FOR FURTHER INFORMATION CONTACT:

address. w CFR Part 30 Donnie H. Grimsley, Director, Division _EFFECTIVE DATE: February 10. 1988. of Rules and Records, Office of Byproduct material. Go\'ernment Administration and Resources FOR FURTHER INFORMATION CONTACT: contracts, Intergovernmental relations. Management. U;J>. Nuclear Regulatory Donnie H. Grimsle\', Director. Division Isotopes. Nuclear materials. Penalty. of Rules and Records. Office of the CommissicJri, Washington. DC 20555, Radiation protection. Reporting and Telephone: 301-492-7211. Administration and Resources recordkeeping requirements. l\2<1nagement. l!.S. Nuclear Regulatory SUPPLEMENTARY INFORMATION: On April Commission, Washington. DC 20555. 10 CFR Part 40 20, 1988 (53 FR 13036), the NRC Telephone: ~iOl--492-7211. .* Government conl!*acts, H.azardous published in the Federal Register e SUPl>LEMENTARY INFORMATION: On ma1erials-transportation, Nuclear general notice announcing that as of Junuiiry 14. 198fl. the NRC announc_ed an materials. Penalty, Reporting and April 11, 1988, the following components adc.ir-css change for its Region l Office recordheping requirements, Source of the NRC had been relocated at the [5,1 FR 972). The ci.rrenl commercial material, Uranium. agency's new office building located at tdephone number l215-337-50CJO) One White Flint North, 11555 Rockville 10 CFR Part 55 n,!Tiains unchanged. The FTS Pike. Rockville, Maryland: The five NRC switchboard number has been changed Manpower training pl'ograms, Nuclear Commissioners, the Office of the to !'.-34~5000. lndh-idual staff members

• power plants and reactors, Penalty, Secretary of the Commission, may be reached by dialing r-rS 8-346- Reporting and r-ccordkeeping Congressional Affairs staff (of the Office 5XXX. as the last three digits of their requirements. of Governmental and Public Affairs),

current telephone numbers remain the JO CFR Port 70 and the staff of.the Office of the General same as listed in the N"RC Tcll*phone Counsel who were formerly located at Hazardous materials-transportation, 1717 H Street NW., Wa!lhington, DC. Directory [NllREG/BR-0046). 1 Material r.ontrol and accounting, Bf!r.ause these an.c,ndments deal These amendments indicate this Nuclea; materials. Packaging*and relocation by adding the Rockville soicly with agenr.y organiz&lion and . contaiool'S, Penalty, Radiation - proCL,durcs. the notice and comment *address to the list of addresses where protection, Reporting and recordkeeping personal delivery of communications provision~ uf !ht Administrati\'e requirements, Scientific equipment; Procedure Acl do not flppiy under 5 maybe made. The NRC is also removing Security measures, Special nuclear the name of a former headquarters ll.S.C. 553[b)(Aj. These amcnclmr.nts are material. cifoc.li\'e upon public:ation in the_ Federal office building which has been vacated Register. Good cause exists to dispc:nse 10 CFR Part 73 by the agency. with the usual 3(1-dav delav in the Hazardous ma terials-transporta lion, Because these amendments deal with efiectivu date. l,ccausc: the* amendments Incorporation by reference, Nuclear the agency organization and procedures, are of a minor and administrati\'e nature materials, Nuclear power plants and the notice and comment provisions of dealing with !he agency's organization. reaclors, Penalty, Reporting and the Administrative Procedure Act do not recordkeeping requirements. Security apply under 5 U.S.C. 553(b)(AJ. These Em*ironmental Impact: Categorical measures. amendments are effective upon Exclusion For the reasons set out in the publication in the-Federal Register. The NRC has determined that this preamble and under the authority of the Good.cause exists to _dispense with the final rule is the type of action duscribed Atomic Energy Act of 1954, as amended. .usual 30-day delay in the effective date, in categorical exclusion 10 CFR the Energy Reorganization Act of 1974, because these- amendments *are of a 51.22(c)(2). Therefore, neither an as amended, and 5 U.S.C. 553, the NRC minor and administrative nature. em*ironmenlal impact statement nor an is adopting the following amendmen_ts to 10 CFR Parts 1, 20. 30. 40, 55. 70, and 73. Environmental Impact: Categorical environmental assessment -has been prepared for this final rule. Exclusion

                                                     ' * *53 FR 17915 Published 5/19/88                              ** ,'.'fhe NRC has determined that this Papen\'Ork Reduction Act Statement                         Effective 5/ 19/88                           final rule is the type of-action described This final rule contains no information                                                              in categorical exclusion 10 CFR collec!ion requirements and therefore is                  10 CFRParts 1, 110, and 171                   51.ZZ(c)(2J. Therefore, neither an nol subject lo the requirements of the                                                                  environmental impact statement nor an Paperwork Reduction Act of 1980 {44                      Addresses for Personal Delivery of             environmental assessment has been ll.S.C. 3501 el seq.).                                    Communications                                 prepared for this final rule.

Lisi of Subjects AGENCY: Nuclear Regulatory Paperwork Reduction' Act Statement Commission. WCFR Part 1 ACTION: Final rule. Thie fina1 rule contains no information collection requirements and therefore is. Organization and functions.

SUMMARY

The Nuclear Regulatory not subject to the requirements of the 1

Commission (NRCJ .is amending its Paperwork Reduction Act of 1980 (44 NUREG/RR--00;6 ma~- be purchasP.d from th!' regulations tci indicate an additional U.S.C; 3501; et seq.). Sup~rintendenl of Documents. U.S. Go,*!'rnmenl Printing Office. P.O. 37082. Wush,n11ton. DC 20013- address for the personal delivery of 7082. communicsticns. The addition of-the 1-SC-3

PART 1

• STATEMENTS OF CONSIDERATION Document Room, formerly located in the regulations to codify nomenclature List of Subjects changes required by a reorganization of Matomic Building at 1717 H Street NW.,

WCFR Part1 Washington, DC, will be relocated at the NRC staff activities within the Office of Gelman Building, 2120 L Street NW., Administration and Resources Orµanization and functions Management. The amendments are (Government Agencies). Lower Level, Washington, DC, 20555. These amendments reflect that necessary to reflect the reorganization 10 CFR Part 110 relocation. of functions reporting to the Deputy In addition, these amendments reflect Director for Administration. The final Administrative practice and rule is intended to inform the public of procedure. Classified information. a change to the name of an organizational unit that has changed the administrative changes to NRC Export. lmporl. lncoJl)oration by since the final rule revising the NRC's regulations. reference. Intergovernmental relations. Statement of Organization and General EFFECTIVE DATE: December 30, 1988. Nuclear materials, NucleHr power plants Information was published in the FOR FURTHER INFORMATION CONTACT: and reactors. Penalty, Reporting and Federal Register on August 21, 1987 (52 Donnie H. Grimsley, Director, Division recordkeeping requirements. Scientific FR 31601), to reflect the reorganization of Freedom of Informs lion and equipment. of the agency. Publication Services, Office of 10 CFR Part 171 Because these amendments deal Administration and Resources solely with the organization and Management, U.S. Nuclear Regulatory Annual charges, Nuclear power plants relocation of agency personnel, the Commission, Washington, DC 20555, and reactors. Penalcy. notice and comment provisions of the Telephone: 301 492-7211, 1 For the reasons set out in the Administrative Procedure Act do not SUPPLEMEHTARY INFORMATION: On May preamble and under the authority of the apply under 5 U.S.C. 553(b)[A). These 19, 1988, the Nuclear Regulatory Atomic Energy Act of 1954. as amended. amendments are effective upon Commission issued a notice to all its the Energy Reorganization Act of 1974. publication in the Federal Register. employees announcing the as amended, and i U.S.C. 552 and 553. Good cause exists to dispense with the reorganization of certain functions in the the NRC is adopting the follo\\ing usual 30-day delay in the effective dat~, Office of Administration ond Resources amendments to 10 CFR Parts 1. 110. and because these amendments are of a Management. The reorganization 171. minor and administrative nature, combines the Division of Contracts and dealing with the organization and the Division of Facilities and Operations 53FR43419 relocation of agency personnel. Support into a new Division of* ** Published 10/27/88 Contracts and Property Management, Effective 10/27/88 Environmental Impact: Categorical and combines the Division of

              -                             Exclusion                                      Publications Services ond the Division 10 CFR Parts 1, 2, 7, 9, 15, 19, 20, 21,        The NRC has determined that this            of Rules and Records into a new 30,35,40,50,51,53,55,60,61, 70,71,           final rule is the type of action described     Division of Freedom of Wormation and 72, 73, 74, 75, 81, 100, 110, 140, 150,      in categorical exclusion 10 CFR                Publications Services. The Nuclear 170 and 171                                 51.22(c)(2). Therefore, neither an             Regulatory Commission is amending environmental impact statement nor an          portions of its regulations to substitute Relocation of NRC's Publlc Document          environmental assessment has been Room; Other Minor Nomenclature                                                             references to the Division of Rules and prepared for this final rule.                  Records with the new Division of Changes Paperwork Reduction Act Statement              Freedom of lnforma lion and AGENCY:   Nuclear Regulatory                                                               Publications Services.

Commission. This final rule contains no information Because these are amendments collection requirements and therefore is dealing with agency practice and ACTION: Final rule. not subject to the requirements of the proceduree, the notice and comment

SUMMARY

The Nuclear Regulatory Paperwork Reduction Act of 1980 (44 provisions of the Administrative Commission (NRC) is amending its U.S.C. 3501 et seq.). Procedure Act do not apply pursuant to regulations to indicate that its Public For the reasons set out in the 5 U.S.C. 553(b)(A). The amendments are Document Room has moved to a new preamble and under the authority of the effective upon publication in the Federal location in the District of Columbia. The Atomic Energy Act of 1954, as amended, Register. Good cause exists to dispense hours remain unchanged: 7:45 a.m. to the Energy Reorganization Act of 1974, with the usual 30-day delay in the 4:15 p.m. weekdays. These amendments as amended, and 5 U.S.C. 553, the NRC effective date, because these are being made to inform NRC licensees is adopting the following amendments to amendments are of a minor and and members of the public of this 10 CFR Parts 1, 2, 7, 9, 15, 19, 20, 21, 30, relocation. This rule also makes minor 35,40,50,51,53,55,60,61,70,71,72,73, administrative na-ture:-<iealing with the nomenclature changes in NRC 74, 75, 81, 100, 110, 140, 150, 170 and 171. agency's reorganization.

organization to reflect new internal Environmental Impact: Categorical organizational titles. 53 FR52993 Exclusion Published 12/30/88 EFFECTIVE DATE: October 27, 1988. Effective 12/30/88 The l'.'RC has determined that this FOR FURTHER INFORMATION CONTACT: final rule is the type of action described Donnie H. Grimsley, Director, Division 10 CFR Parts 1, 2, 9 and 73 in categorical exclusion 10 CFR of Freedom of Information and 51,22(c)(2). Therefore, neither an Publications Services, Office of Reorganization of Functions Within environmental impact statement nor an Administration and Resources the Office of Administration and environmental assessment has been Management, U.S. Nuclear Regulatory Resources Management and Minor prepared for this fmal rule. Commission, Washington, DC 20555, Corrective Amendmeni. Telephone: 301-492-7211. Papenvork Reduction Act Statement AGENCY: Nuclear Regulatory

• SUPPLEMENTARY INFORMATION: On Commission. This final rule contains no information September 9, 1988 (53 FR 35135), the ACTION: Final rule. collection requirements and therefore is NRC published in the Federal Register a not subject to the requirements of the general notice announcing that as of

SUMMARY

The Nuclear Regulatory Paperwork Reduction Act of 1980 (44 Sep~em~er 19, ~~~8, the NRC's Public Commission (NRC) is amending its U.S.C. 3501 et seq.).

• 1*SC-4

PART 1 STATEMENTS OF CONSIDERATION List of Subjects FOR FURTHER INFORMATION CONTACT: in categorical exclusion 10 CFR Donnie H. Grimsley, Director, Division 51.22(c)(2). Therefore, neither an 10CFRParl 1 of Freedom of Information and environmental impact statement nor an Organization and functions Publications Ser.ices, Office of environmental assesssment has been (Government Agencies). Administration, Washington, DC 20555, prepared for this final rule. Telephone: 301-492-7211, WCFRPar/2 Paperwork Reduction Act Statement SUPPLEMENTARY INFORMATION: On Administrative practice and January 9, 1989, the Nuclear Regulatory This final rule contains no information procedure, Antitrust, Byproduct Commission (NRC) announced collection requirements and therefore is material, Classified information, organizational changes within the Office not subject to the requirements of the Environmental protection, Nucleur of the Executive Director for Operations. Paperwork Reduction Act of 1980 (44 Materials, Nuclear power plants and In the reorganization, the Commission U.S.C. 3501 et seq.). reactors, Penalty, Sex discrimination. appointed a second Deputy Executive List of Subjects Source material, Special nuclear Director for Operations and assigned material, Waste treatment and disposal. specific areas of responsibilities to each 10CFRPartO 10CFRPart9 of these two deputies. There is now a Conflict of interest, Penalty. Deputy Executive Director for Nuclear Freedom of information, Penalty, Reactor Regulation, Regional 10CFRPart 1 Privacy, Reporting end recordkeeping Operations, and Research and a Deputy Organization and functions requirements. Executive Director for Nuclear Materials (Government Agencies). 10 CPR Part 73 Safety, Safeguards, and Operations Support. In a separate organizational 10CFRPart2 Hazardous materials-transportation, change, the Office of Administration Administrative practice and Incorporation by reference, Nuclear and Resources Management was procedure, Antitrust, Byproduct materials, Nuclear power plants and abolished and three offices were material, Classified information, reactors, Penalty, Reporting and established. These three offices are the Environmental protection, Nuclear recordkeeping requirements, Security Office of the Controller, which will materials, Nuclear power plants and measures. report to the Executive Director for _reactors, Penalty~ Sex discrimination, For the reasons set out in the Operations, the Office of Source material, Special nuclear preamble and under the authority of th!! Administration, and the Office of material, Waste treatment and disposal. Atomic Energy Act of 1954, as amended. Information Resources Management, the Energy Reorganization Act of 1974, which will report to the Deputy 10CFRPart9 ea amended, and 5 U.S.C. 553, the NRC Executive Director for- Nuclear Materials Freedom of information, Penalty, is adopting the following amendments to Safety, Safeguards, and Operations Privacy, Reporting and recordkeeping 10 CFR Parts, 1, 2, 9, 55, and 73, requirements, Sunshine Act. Support. 54 FR53312 On January 11, 1989, the Commission 10 CFR Part 10 Published 12/28/89 voted to establish an Office of the Licensing Support System (LSS) Administrative practice and Effective 12/28/89 Administrator which reports to the procedure, Classified information, 10 CFR Parts 0, 1, 2, 9, 10, 15, 25, 51, Commission for policy direction and to Government employees, Security and95 the Chairman for day-to-day measures. management supervision.

• 10 CFR Part 15 RIN 3150-AD18 On April 17, 1989, the Office of the Inspector General was established as a Administrative practice and Statement of Organization and General result of Public Law 10~04. "The procedure, Debt collection.

Information; Minor Amendments Inspector General Amendments Act of 10 CFR Part 25 1988." AGENCY: Nuclear Regulatory The Commission has also added to its Classified information, Investigations, Commission. description of committees, panels, and Penalty, Reporting and recordkeeping ACTION: Final rule. boards information concerning the requirements, Security measures. Advisory Committee on Nuclear Waste, 10 CFR Part 51

SUMMARY

The Nuclear Regulatory the Nuclear Safety Research and Commission is revising its statement of Review Committee, and the Licensing Administrative practice and organization and general information to Support System Advisory Review Panel. procedure, Environmental impact reflect the reorganizations within the Because these are amendments statement, Nuclear materials, Nuclear Office of the Executive Director for dealing with agency practice and power plants and reactors, Reporting Operations and the former Office of procedure, the notice and comment and recordkeeping requirements.

Administration and Resources provisions of the Administrative 10 CFR Part 95 Management and the creation of the Procedure Act do not apply pursuant to Office of the Licensing Support System 5 U.S.C. 553(b)(A). The amendments are Classified information, Penalty, Administrator and the Office of the effective upon publication in the Federal Reporting and recordkeeping Inspector General. The revision adds to Register. Good cause exists to dispense requirements, Security measures. the description of committees, boards, with the usual 30-day delay in the For the reason set out in the preamble and panels the Advisory Committee on effective date, because these and under the authority of the Atomic Nuclear Waste, the Nuclear Safety amendments are of a minor and Energy Act of 1954, as amended, the Research and Review Committee, and administrative nature, dealing with the Energy Reorganization Act of 1974, as the Licensing Support System Advisory agency's reorganization. amended, and 5 U.S.C. 552 and 553, the Review Panel. This revision is necessary NRC is adopting the following to inform licensees and the public of Environmental Impact: Categorical amendments to 10 CFR parts 0, 1, 2, 9, organizational changes within the NRC. Exclusion 10, 15, 25, 51, and 95. EFFECTIVE DATE: The rule will become The NRC has determined that this effective December 28, 1989. final rule is the type of action described 1-SC-5

PART 1

• STATEMENTS OF CONSIDERATION 55 FA 47740 in categorical exclusion 10 CFR FOR FURTHER INFORMATION CONTACT:

Published 11 /15/90 51.22(c)(2). Therefore, neither en Donnie H. Grimsley, Director, Division Effective: upon date of publication. environmental impact statement nor an of Freedom of lnforma lion and environmental assessment has been . Publications Services, Office of 10 CFR Parts Oand 1 prepared for this final rule. Administration, Washington, DC 20555, AIN 3150-AD74 Paperwork Reduction Act Statement Telephone: 301-492-7211. SUPPLEMENTARY INFORMATION: On Statement of Organization and General This final rule contains no information October 23, 1991, the Commission Information; Minor Amendments collection requirements and therefore is announced its decision to abolish the not subject to the requirements of the AGENCY: Nuclear Regulatory Paperwork Reduction Act of 1980 (44 Office of Governmental and Public Commission. ACTION: Final rule.

                 , __________                U.S.C. 3501 et seq.). Existing requirements were approved by the Office of Management and Budget Affairs and reassign its subordinate offices and functions. In the reorganization, the functions and

SUMMARY

The Nuclear Regulatory approval number 3150-0025. personnel of the Office of State Commission is revising Its statement of Programs will be assigned to the o 0 ganization und general information to List of Subjects Executive Director for Operations and reflect the establishment of the Office of 10CFR Part O will be aligned as a separate office Inspector General (OlG) by formally reporting to the Deputy Executive removing references to the Office of Conflict of interest, Penalty.

Director for Nuclear Materials Safety, Inspector and Auditor (OIA) from its 10 CFR Par*t 1 Safeguards, Elnd Operations Support. regulations. The authority and responsibility for OIA functions have Organization end functions The functions and personnel of the been transferred to the OIG. This final (Government Agencies). Office of International Programs will be rule is necessaty to inform the public of For the rcuRon set out in the preamble aligned as a oeparate office reporting to organizational changes within the NRC. and under the authority of the Atomic the Commission. The Offices of Energy Act of 1954, as emended, the Congressional Affairs and Public Affairs EFFECTIVE DATE: The rule will become effective u;>on date of publication. Energy Reorganization Act of 1974, as will continue to report to the Chairman amended, and 5 U.S.C. 552 and 553, the of the Commission. FOR FURTHER INFORMATION CONTACT: NRC is adopting the following Because these are amendments Donnie H. Grimsley, Director. Division amendments to 10 CFR perts O and 1. dealing with agency practice and of Freedom of Information and procedures, the.notice and comment Publications Services, Office of 56FR29403 provisions of the Administrative Administration, Washington, DC 20555, Published 6/27/91. Procedure Act do not apply pursuant to Telephone: 301-492-7211. Effective 7/29/91. 5 U.S.C. 553(b)(A). The amendments are SUPPLEMENTARY INFORMATION: On April effective upon publication in the Federal Procedures for Direct Commission 17, 1989, the Office of the Inspector Review of Decisions of Presiding Register. Good cause exists to dispense General was established as a result of Officers with the usual 30-day delay in the Public Law 100-504, "The Inspector effective date because these General Amendments Act of 1988." The See Part o Statements of Consideration amendments are of a minor end Nuclear Regulatory Commission (NRC) administrative nature, dealing with the formally announced the establishment 57FR 1638 agency's reorganization. of the OIG in a final rule published in Published 1/15/92 the Federal Register on December 28, Effective 1/15/92 EnvironmentU:l Impac:t: Categorical 1989 (54 FR 53312). Exclusion , ' The amendments presented in this 10CFAPart 1 final rule are necessary to formally . *

• i
• The NRC has determined that this remove references to the Office of RIN 3150-AE10'*' final rule is the type of action described Inspector and Auditor (OIA) from 10 in categorical,exclusion mcFR Reorganization of. the Office of 51.22(c)(2). Therefore, neither an CFR -~hapter I. The authority and responsibility for OIA functions have Governmental and Publlc Affairs environmental impact stateinentnor an been transferred to the OIG. environment assessment has been AGENCY: Nuclear Regulatory prepared for this final rule.

Because these are amendments Commission.

• dealing with agency practice and Paperwork Reduction Act Statement procedure, the notice and comment ACTION: Final rule.

provisions of the Administrative This final rule contains no information

SUMMARY

The Nuclear Regulatory collection requirements and therefore is Procedure Act do not apply pursuant to 5 U.S.C. 553(b)(A). The amendments are Commission (NRC) is amending its not subject to the requirements of the effective upon publication in the Federal regulations to reflect the Commission's Paperwork Reduction Ai::t of 1980 (44 Register. Good cause exists to dispense decision to abolish the Office of U.S.C. 3501 et seq.)

with the usual 30-day delay in the Governmental and Public Affairs and to List _of Subjects in 10 CFR Part 1 effective date, because these reassign its subordinate offices and amendments are of a minor and functions. This final rule is necessary to Organization and functions , administrative nature, dealing with the inform the public of organizational (Government agencies).

• agency's rt:organizetion. changes within the NRC. For the reasons set out in the Environmental Impact: Categorical EFFECTIVE DATE: The rule will become
• preamble and under the authority of the effective January 15, 1992. Atomic Energy Act of 1954, as amended, Exclusion the Energy Reorganization Act of 1974, The NRC has determined that this as amended, and 5 U.S.C. 552 and 553, final rule is t~e type of action described the NRC is adopting the following amendments to 10 CFR part 1.

1-SC-6

PART 1

• STATEMENTS OF CONSIDERATION 58 FR64110 Office, and the change of the Region V final rule is the type of action described Published 12/6/93 office to a Region IV field office. This in categorical exclusion 10 CFR Effective 12/13/93 final rule corrects several minor 51 22(c)(2). Therefore, neither an typographical errors. The amendments environmental impact statement nor an NRG Region Ill Telephone Number and are necessary to inform the public of environmental assessment has been Address Change these administrative changes to the prepared for this final rule.

NRC's regulations. Paperwork Reduction Act Statement See Part 20 Statements of Consideration EFFECTIVE DATE: December 12, 1994. FOR FURTHER INFORMATION CONTACT: This final rule contains no Sarah N. Wigginton, Acting Chief, Rules information collection requirements Review and Directives Branch, Division nnd, therefore, is not subject to the of Freedom of Information and requirements ofthe Paperwork 59 FR 5519 ReductionAct*of1980 (44 U.S.C. 3501 Published 2/7/94 Publications Services, Office of Administration, U.S. Nuclear Regulatory et seq.). Effective 2/7/94 Commission, Washington, DC 20555, List of Subjects in 10 CFR Part 1 Minor Clarifying Amendments telephone: (301) 415-7164. Organization end functions SUPPLEMENTARY INFORMATION! (Government agencies). See Part 21 Statements of Consideration Background For the reasons set out in the preamble and under the authority of the When the NRC began to consolidate Atomic Energy Act of 1954, as amended, its Headquarters offices, the NRC

• the Energy Reorganization Act of 1974, published e Federal Register notice on ns amended, and 5 U.S.C. 552 and 553, 59 FR 17464
• December 29, 1987 (52 FR 49100), that *the NRC is adopting the following Published 4/13/94 announced the relocation of several of amendments to 10 CFR Part 1.

Effective 4/4/94 its Headquarters offices to One White Flint North, 11555 Rockville Pike, Consolidation of the NRG Region V Rockville, Maryland. On January 1, 1988_ Office With the Region IV Office (53 FR 1744), the NRC amended its See Part 20 _Statements of Consideration regulations to codify_the relocation of those offices; The NRC. has completed its consolidation effort by relocating its remaining Headquarters offices to the agency's new office building located at Two White Flint North, 11545 Rockville 59 FR 63881 Pike, Rockville, Maryland. This final Published 12/12/94 rule is necessary to codify these Effective 12/12/94 consolidation changes. This final rule also reflects the merger of the NRC's 10 CFR Part 1 Office of Administration and the Office of Consolidation and the reconstitution RIN 3150-AE86 of the Office of the Licensing Support System Administrator (LSSA) as an Statement of Organization and General organizational unit within the Office of Information; Agency Consolidation Information Resources Management and Minor Amendments (IRM). IRM reports-to the EDO. AGENCY: Nuclear Regulatory This final 1:ule_ also notifies the public Commission. of the name change of the Office of ACTION: Final rule. Small Business and Civil Rights, the deletion of the Uranium Recovery Field

SUMMARY

The Nuclear Regulatory Office, and the change of the Region V Commission is amending its regulations office to a Region IV field office.

to reflect the completion of the NRC Because these amendments deal with Headquarters consolidation effort, the agency practice and procedures, the merger of the Office of Administration notice and comment provisions of the and the Office .of Consolidation, the .Administrative Procedure Act do not- - .. reconstitution of the Office of the apply pursuant to 5 U.S.C. 553(b)(A). Licensing Support System The amendments are effective upon Administrator as an organizational unit publication in the Federal Register. of the Office of Information Resources Good cause exists to dispense with the Management, and the transfer of the usual 30-day delay i~ the effective date responsibility for administering the because these amendments are of a Licensing Support System from the minor md administrative nature, Commission staff to the Office of the dealing with the agency's Executive Director for Operations rnurganization. (EDD). These amendments also reflect the change in the name of the Office of Environmental Impact: Categorical Small Business and Civil Rights, the Exclusion deletion of~!! U~i'!ffi Recovery Field The NRC has determined that this 1-SC-7

UNITED STATES NUCLEAR REGULATORY COMMISSION RULES and REGULATIONS TITLE 10, CHAPTER 1. CODE OF FEDERAL REGULATIONS-ENERGY RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND ISSUANCE OF ORDERS STATEMENTS OF CONSIDER~_TlON 30-day delay in the effective date * . Lists of Subjects in 10 CFR Part 2 52 FR 2993 Published 1/30/87 because the amendments are of a minor Effective 1/30/87 and administrative nature that will Administrative practice and change the agency's rules of practice to procedure, Antitrust, By product allow routine referral of requests for ' material, Classified information, 10 CFR Part 2 i Environmental protection, Nuclear certain hearings to a licensing board

                                               *Without the need for a Commission                 materials, Nuclear power plants and Functions of Atomic Safety and                                                               ' reactors, Penalty, Sex discrimination, order.

Licensing Appeal Board Source material, Special nuclear Environmental Impact: Categorical material, Waste treatment and disposal. AGENCY: Nuclear Regulatory Exclusion Commission. For the reasons set out in the ACTION: Final rule. The action required under this final .

• preamble and under the authority of the rule is administrative and would not Atomic Energy Act of 1954, as amended,

SUMMARY

The Nuclear Regulatory impact the environment. The the Energy Reorganization Act of 1974, Commission is amending its regulations Commission has determined pursuant to as amended, E.0.11222 of May 8, 1965, 5 to provide for Atomic Safety and 10 CFR 51.22(a) that this final rule would , CFR 735.104, and 5 U.S.C. 553, the NRC Licensing Appeal Board review of all be the type of action that is described in is adopting the following amendment to decisions rendered by the Atomic Safety categorical exclusion 10 CFR 51.22[c)[l). 10 CFR Part 2:

and Licensing Board in formal agency Therefore, neither an environmental adjudications. impact statement nor an environmental assessment has been prepared for this

!F.FECTIVE DATE: January 30, 1987.

proposed rule. FOR FURTHER INFORMATION CONTACT: Trip Rothschild, Senior Attorney, Office Paperwork Reduction Act Stateme~t of the General Counsel, U.S. Nuclear This final rule contains no information , Regulatory Commission, Washington, 52 FR 31601 collection requirements and, therefore, Publi5hed 8/21/87 DC 20555, telephone (202) 634-1465. is not subject to the requirements of the Eff active 8119/87 SUPPLEMENTARY INFORMATION: Section Paperwork Reduction Act of 1980 (44 2.785[a) of 10 CFR Part 2 authorizes the U.S.C. 3501, et seq.). Statement of Organization and General establishment of an Atomic Safety and Information Licensing Appeal Board to exercise the Regulatory Analysis See Part 1 Statements of Consideration authority and perform the review This rule codifies existing agency .

• functions that would have otherwise practice Df authorizing the .fill!ablishmenL been exercised and performed by the of Atomic Safety and Licensing Appeal Commission in proceedings on Boards in virtually all formal agency 52 FR 36215

 *applications for licenses under Part 50        adjudications. Accordingly, it does not           Published 9/28/87 (power reactors). The Commission is                                                              Effective 9/28/87 impose additional costs on applicants, amending its regulations to authorize the      licensees, or members of the public.

establishment of appeal boards in all 10CFRPart2 proceedings conducted pursuant to 10 Backfit Analysis CFR Part*2, Subpart G, unless the This final rule does not modify or add Polley and Procedure for Enforcement Commission by order directs otherwise. to systems, structures, components or Actions: Policy Statement The effect of this amendment is to design of a facility; the design approval authorize the establishment of appeal or manufacturing license for a facility; or AGENCY! Nuclear Regulatory boards in all formal agency adjudicatory the procedures or organization required Commission. proceedings. In the past the Commission to design, construct or operate a facility. ACTl~N: Revised policy statement. has authorized the establishment of Accordingly, no backfit analysis

• Appeal Boards in virtually all such pursuant to 10 CFR 50.109(c) is required SUMN!ARV: The NRC is publishing minor proceedings by issuing an Order to that for this final rule. revisions to its Enforcement Policy to .

  -~ff;ct. This-rui~ change will obviate the     Regulatory Flexibility Certification               further explain enforcement actions need to issue such orders.                                                                      *involving individuals,*to describe the Because these amendments deal with            As required by the Regulatory                   criteria to be ~sed for reopening closed agency practice and procedures, the           Flexibility Act of 1980, 5 U.S.C. 605[b),          enforcement actions, to provide for the notice and comment provisions of the          the Commission certifies that this rure--          exerclse of discretion to refrain from Administrative Procedure Act do not           does not have a significant economic               issuing a Notice 1>f Violation or a
  *apply pursuant to 5 U.S.C. 553[b)[A) and

• impact on a substantial number of small proposed civil penalty under r,;ertaiµ consistent with the agency's exceptions
• entities.

to no.lice and comment for rulemaking procedures [10 CFR 2.804(d)(l)). Good cause exists to dispense with the usual . 2-SC-1

PART 2

• STATEMENTS OF CONSIDERATION limited circumstances, and to make outside experts to review the .,ake action directly against licensed minor deletions and language changes. Enforcement Policy and provide the operators when their actions result in The policy statement is intended to Commission with recommendations on significant violations of NRC inform licensees, vendors, and the any changes it believed advisable. The
• requirements involving.incompetence or public of the bases for taking various committee was established on August willfulness or whei:e it appears .

enforcement actions. The policy is 31, 1984 and issued its report on* operators are not competent to safely codified as Appendix C to 10 CFR Part 2. November 22, 1985. The Commission perform their duties. Such an approach

                                          *subsequently decided that the.              places primary responsibility for DATES: This revised statement of policy Enforcerrient Policy should be revised to   operator errors where it belongs-with

'is effective September 28, 1987 while the facility licensee which is responsible comments on the changes ere being .include some of the-recommendations of received. Submit comments on or before the committee and other changes. for opera tor training and for developing November 27, 1987. According!)*, the Commission has adequate*procedures to govern facility approved the following revisions 1o the operations. ADDRESSES: .Send comments to:

                                           *Enforcement Policy which explain              Despite this philosophy, the NRC does Secretary, U.S. Nuclear Regulatory        1enforcement actions involving               issue licenses to operators and has Commission, Washington, DC 20555.           individuals, add a section regarding the   many regulations that recognize that ATTN: Docketing and.Service Branch.         criteria to be used for reopening closed   timely actions by NRC-licensed Hand deliver comments to: Room 1121,        enforcement actions, provide for the       individuals are an important part of 1717 H Street, NW., Washington. DC          exercise of discretion to refrain from     safety. Specifically, the regulations state between 7:30 a.m. to 4:15 p.m.              issuing a* Notice of Violation or a        that:

Copies of comments may be examined proposed civil penalty under certain

• Generally, only licensed operators at the NRC Public Document Room, 1717 limited conditions, and make language are permitted to manipulate the controls H Street, NW., Washington, DC; deletions.and changes in other sections. that directly affect reactivity [10 CFR FOR FURTHER INFORMATION CONTACT:

Revisions to the Enforcement Policy 50.54(i)): James Lieberman,.Oirector, Office of

• Licensed operators must be present Enforcement, U.S. Nuclear Regulatory Revisions to the policy now being at the controls at all times during the Commission, Washington. DC 20555 made are described in the following operation of the facility (10 CFR (301-492-8214). paragraphs. Only the sections to which 50.54(k)); .

SUPPLEMENTARY INFORMATION: changes were made are discussed here.

• Mechanisms' and apparatus. other The numbering of the sections tracks the than controls, the operation of which

Background:

section numbers in the policy. may indirectly affect the power level or The criteria used by the Commission I. Introduction and Purpose reactively of a reactor. may be to conduct its enforcement activities manipulated only with the knowledge were first published on October 17, 1972 Profiting from Violation and consent of an operator licensed in (37 FR 21962). These criteria were The Commission is deleting the accordance.with Part 55 (10 CFR subsequently modified on January 3. following sentence in the second 50.54(j)); . . 1975 (40 FR 820) and on December 3, paragraph under Section I of the * *

• Lioensed senior operators must be 1979 (44 FR 77135). In late 1979, the Enforcement Policy. "It is the present at the facility during specified Commission directed the staff to prepare Commission's intent that sanctions conditions, and available or on call at a comprehensive statement of should be designed to ensure that a other times during operation (10 CFR enforcement policy. This staff effort was licensee does not deliberately profit 50.54[m)); and given added urgency by the enactment from violations ofNRC requirements."
• An NRC licensed individual must of Pub. L. 96-295 (signed June 30, 1980), The Commission believes that the observe all applicable rules, regulations

.that, among other things. amended wording is ambiguous and that, in fact, and orders of the Commission, whether section 234 of the Atomic Energy Act to few violations are the result of a or not stated in the license (10 CFR raise the maximum civil penalty the . .calculated judgment to profit from 55.31(d)) . NRC can impose from $5,000 to $100,000 noncompliance. Other wording in the Because of the importance the per violation per day and eliminated the policy clearly states that sanctions and Commission places on high standards of proyision limiting the total civil . severity levels may be increased for performance by facility staff, the penalties for any 30-day period to deliberate violations. guidance on when enforcement action

$25,000. On September 4, 1980,- the                                                   against an individual will be considered Commission approved a proposed             V. Enforcement Actions has been expanded in renumbered general statement of policy on       . Notice of Violation for Certain Severity    Section V.E.

enforcement. Comments were solicited Level IV and V Violations on the policy and a series of public Allowing Mitigation of Civil Penalties meetings was held. On March 9, 1982,

• Section V.A., Notice of Violation, for Severity Level I Violations the Commission published a final -previously discussed circumstances under which the NRC will not generally The Commission believes that version of the policy (47 FR 9987). After mitigation of a civil penalty for a the policy had been in effect for about issue a Notice of Violation for Severity Level IV. or V violations. Because this Severity Level I violation should be two years, the Commission determined available on the same basis as for that certain minor revisions should be could be regarded as a type of discretionacy emorcement,* the Severity Level II and Ill violations since made. These revisions were published in 1he practical justifications for allowing the Federal Register (49 FR 8583) and ,discussion has been moved to the new Section V.F;, Exercise of Discretion. mitigation of these violations is the became effective on March 8, 1984. The same; i.e., to encourage self-criteria were further revised to describe .Enforcement Actions Against !dentification a?d reporting, extensive how the NRC Enforcement Policy lndivlduals corrective actions, and good . . _

applies to vendors of products or

• The NRC has taken actions against performance py .a licensee. The*se*corid services on November 20, 1985 (50 FR individual licensed operators in certain paragraph under V.B: of the 47716). In conjunction with approving instances where misconduct occurred. Enforcement Policy is *modified as the March 1984 revision to the Generally, the staff policy has been that follows: * -. * * * .

Enforcement Policy, the Commission the NRC should defer to the licensee in . "Civil.penalti_es are imposed absent decided to establish a committee of the sup~rvision of operators but should mitigating circumstances for Severity Level I and II violations, are considered forSeve~ly 2-SC-2

PART 2

• STATEMENTS OF CONSIDERATION Lr.vel Ill violations. and*mHy he imposcrl for to mer.I the objectives set forth in the J'!?rformance so significant that thP. NRC Srverity Le,*cl IV violations that are similar enforcement policy: specifically, will not allow restart until it is sure that lo the previous violations for which the encouraging prompt correction of ' major problems have been satisfactorily lkens1,c did not lake effective correc.iive existing violations and adverse
• a,.tion. resolved.

conditions; deterring future violations The reason for the second condition is Reopening Closed Enforcement Actions and adverse conditions, and to provide an incentive for licensee T.he agency's enforcement program encouraging improved performance by identification of violations. If the NRC does not address the criteria for the licensee and, by example, that of the finds the problem, and believes that the reopening closed enforcement actions. industry; and et the same time, not licensee's corrective action program is There have been rare instances where it discouraging aggressive and not working adequately, civil penalty

\\'as appropriate lo reopen an .                 ~omprehensive implementation of a               enforcement action may be appropriate.

enforcement action to correct an structured program to identify and The reason for *the third condition is inappropriately 11pplied action. A new correct problems. that if violations are identified In view of this, the Commission has

• associated with wo.k performed after paragraph on Reopening Closed decided that discretion inay be Enforcement Actions is added lo Section the event or shutdown, this may also V. exercised, provided there is prior staff indicate that the incentives for consultation, to refrain from issuing a conducting en adequate program are not The Commission believes that Notice of Violation and a proposed civil reopening a previously closed sufficient and the deterrent effects of penalty for violations that meet all of civil penalty enforcement may be enforcement action may be appropriate the following criteria which are listed in under certain circumstances. If necessary.

e new paragraph in Section V: significant new information is received 1. (a) NRC has talcen significant The reason for the fourth condition is by the NRC which indicates that an enforcement action based upon a major to distinguish less significant violations enforcement saRction was incorrectly safety event contributing to an extended from more significant violations. applied, that action could be *reopened shutdown of an operating reactor or a Although the rationale for refraining to correct the record. Reopening should material licensee (or a work stoppage at froJll civil penalty enforcement action occur only (1) if remedial action,e.g., in a construction site), or the licensee is

• may be* the same for Severity Level I the form of an order, is necessary to forced into an extended shutdown or and ll violations that meet the other abate the continued harm of a *violation work stoppage related to generally poor three criteria, with violations at this to the .public health and safety, *the. performance over a *long period; (b) the*
• level, it may be i.o-nportant to convey a common defense and security, or the licensee has developed and* is message to other licensees regarding the
• environment or (2) if new information aggressively implementing during the significance and consequences of such .

shows that a violation was less serious shutdown a COD)prehensive program for violations.

• than originally believed or that it did not problem identification and correction; Supplement .VII occur. Enforcement action would end (c) NRC concurrence is needed by normally not be reopenei:I where the the licensee prior to restart; The reference to section 210 of the
• only change to the prior action would be 2. Non-willful violations are identified Energy Reorganization Act, which to increase the severity level of a by the licensee (as opposed to the NRG) prohibits discrimination against violation or to impose or increase a civil as the result of its comprehensive employees for engaging in certain pen.alty. Reopening an enforcement * *program, or the violations are identified protected activities, has been replaced action is expected to occur only rarely as a result of an employee allegation to with a reference to 10 CFR 50.7 and

-and would require specific approval of          the licensee. If the NRC identifies the         similar NRC regulations prohibiting :
~e Deputy Executive Director for                 violations, the NRC should determine            discrinlinations against employees. *The

• Regional Operatiop.s. whether enforcement action is requirements of § 50.7 _apply to P!irt so necessary to achieve.remedial action; licensees, but similar requirell\ents ..

Exercise of Discretion .

         .                                           3. The violations are based upon            appe11r in other parts of NRC regulations As discussed in Section I abo'ile,,the        activjties of the licensee prior to the        g!)vemi~g other types of licensed . _ . .

discussion of circumstances under _events leading to the.shu.tdown; and. *activity.Harassment and iJ:itimidatio*n of-which the NRC will not generally issue a 4. The non-willful violations would* _quality assurance workers rµay. Notipe of Violation for Severity Level IV normally not be categorized as higher

• constitute vioh1tions of the or V violations has*been moved to new than Severity Level m violatioris under independence criterion for quality Section V.G., Exercise of Discretion. the NRC's Enforcement Policy.
• assurance programs, such a~ is required Additionally, discussion of other
• Notwithstanding the above, a civil under 10 CFR Part 50, Appendix B. The circumstances under which a Notice of penalty may.be proposed in a case replacement of the reference in Violation or proposed civi(penalty where multiple Severity Level m Supplement VII to Section 210 with a might n9t be issued by the NRC is violations are discovered. This action reference to NRC regulations is .

added. Although strict application of the would be taken when judgment appropriate because NRC regulations, escal_ating arid mitigating factors set warrants it on the circumstances of the not section 210, form the basis for fc;,rth in the enforcement*policy would . individual case. . violations and enforcement actions suggest that issuance of a civil penalty The reason for the first condition is to related to wrongful discrimination or in a *particular case would be limit the circumstances under which harassment. appropriale,'the benefits to be gained such discretion would be exer.cised to froni issuing a civil penalty are doubtful* cases in which the incentives for List of Subjects in 10 CFR Part 2 for violations identified by a licensee problem identification and correction Administrative practice and during a forced shutdown where a ere the greatest and the deterrent.effects procedure, Antitrust, J3yproduct . licensee is diligently and aggressively ofcivil penalty_ enforcement action are material, Classified information, addressing the causes of the violations. likely to be fewest-when the licensee is Environmentai protection, Nuclear In particular, it is*questionable whether in en extended shutdown caused by a ~aterials, Nuclear. power plants .and such an action would provide incentives major event or peri'od of poor reactors, Penalty, Sex discrimination, 2-SC-3

PART 2

• STATEMENTS OF CONSIDERATION Source material, Special nuclear Important features of the new fee entities submitting Freedom of .

material, Waste treatment _and disposal. structure involve substantial changes Information Act {FOIA~ requests. As the that relate to agency charges for search, Securities and Exchange Commission For the reasons set out in the review, an.d duplication of records. In indicated in its Initial Regul.atory *. preamble and under the authority of the addition, the new guidelines set forth Flexibility Analysis (June 29, 1987; 52 FR Atomic Energy Act of 1954, as amended, procedures for conducting searches 24145), "There is no reasonable' method the Energy Reorganization Act of 1974, without charge, duplicating records for estimating the number of entities as amended, and 5 U.S.C. 553, the NRC without charge, waiving or redui;.ing a involved." Neither the Freedom of is adopting the following statement of fee, and the provisions for asses!!lng Information Reform Act nor the policy as Appendix C to 10 CFR Part 2. interest on unpaid bills that are more guidelines of 0MB and the Department than 30*days delinquent. Moreover, the of Justice suggest that agencies should Freedom of Information Reform Act of . tier or reduce the fees for any groups of . 52 FR 49350 Published 12/31/87 1986 requires the agency to provide the requesters not specifially mentioned in Effective 2/1/88 first 100 pages of requested records free the legislation. As a matter of practice, of charge for requests other thaq for ho~ever, the NRC routinely places. 1.0 CFR Parts 2 and 9 .commercial use. records responding to FOIA requests. Conforming amendments have been along with their appendices. in the Revision *of:Freedom of lnfOTmation made to Part 2 and ,Part 9, s*ubparts B. C, N'RC's PubJic,Documenl Room. This Act R*gulations; Conforming* and D, to conform cross-references to practice permits FOIA requesters, Amendments.* the renumbered sections of.Part 9, among whom may be commercial-use Subpart A. and to reflect the changes to requesters and other small entities, to AGENCY: Nuclear Regulato11* 0 Exemption 7 of the FOIA. review requested records, and thus Commission~ The proposed rule was published in affords them an opportunity to reduce ACTION: FinaJ;rule. the Federal Register on August 6, 1987 the financial burden by purchasing only

SUMMARY

The Nucl1mr Regulatory (52 FR 29196]. The comment period records for which they are specifically Commission (!\:RC) is amending its expired on Angus\ 26, 1987. interested. The financial burden of using mgulations pertaining to Public Records Analysis of Comments Received by the FOIA may also be reduced if a in order-le conform its Frecclom of NRC . requester meets the legal requirements lnformulion Act (FOIA) rrguh1tions to for a waiver and/or reduction of fees.

The NRC received six comment letters The NRC provides procedures for till' FOlA as amended b,* the Frf'edom of from the following sources: Information Reform Aci' of 19116 and to making such a request al § 9.41. reflect current NRC nrgHnizational Public Citizen Li!igation Group A survey of 15 agencies revealed that Reporters Committee for Freedom of the 12 of them either staled that the strui:tun* and.current agency practice Pri:ss and delegation. These amendments also Ohio Citizens for Responsible Energy (OCRE) Regulatory Flexibility Act did not apply reduce the repetition of statutory Mr. Joseph M. Felton to this t:,*pe of rulernaking or did not requirements. These amendments are Commonwealth Edison mention the*Regulatory Flexibility Act ner.essarl lo inform the public about the Kurr-McGee Corporation in the rulemakirig at all. 1 Among the procedural changes to the FOIA The comments are addressed below in agencies stating that the Regulatory rrgulations. sequential order according to the Flexibility Act does not apply is the EFFECTIVE DATE: February 1. 1988. specific part of the proposed rule to Department of Justice, the agency taking FOR FURTHER INFORMATION CONTACT: which they appl_y. the leading role in the. development of Donnie H. Grimsley, Director. Division the fee waiver guidelines. The NRC

1. Regulatory AnaJJ,sis and Regulatory believes, absent any other comments of Rules and Records, Office of Administration and Resources*

Flexibilit;* Certification regarding the subject, that its Regulatory Management. U.S. Nuciear Regulatory One commenter stated that the Analysis and Regulatory Flexibility Commission, Washington, DC 20555, conclusions drawn in these two Certification represent a good faith Telephone: 301-492-7211. discussions were Munsubstantiated and effort at estimating the.impact on contracy to the small business size requesters and the NRC. SUPPLEMENTARY INFORMATION: The Freedom.oflnfonnation Reform Act of standards published by NRC in 2. Section 9.13 Definitions 1986 (Pub. L. 99-570) was signed by the December 198[5)." The commenter_ President on October 27, 1986. The Act further stated that the NRC should* Several commenters addressed one or provides for broader exemption prepare an. analy~is that would show more of the definitions in this section. protection for Jaw enforcement "the actual cost impact of the

• One commenter stated that paragraph information (Exemption 7 of the FOIA) regulations on requesters." With regard (2) under the definition of "agency and new law enforcement record to small entities, the commenter record" is incongruent with § 9.200(b),

exclusions. The new exemption recommended the "NRC should consider which defines NRC personnel to include provisions became effective reducing costs for search and contractors. Part 9 was amended in 1985 immediately. The amendments changed reproduction." to remove the reference (in former § 9.4 the threshold oI records encompassed When th~ NRC published its notice of Availability of Records) to NRC under Exemption 7 from "investigatory adoption *of size standards in December contractor records because existing case records" to all records or information .1985 l50 FR 50241), it acknowledged that law and long-standing agency practice compiled for law enforcement purposes. approximately 25 to 35 percent of its held that records not actually in the The Act also establishes new provisions licensees were considered to be small possession and control of the NRC are

 .relateq,.to the assessment of charges and  entities. These licensees-were comprised      not agency records. The definition in waiviri8 of fees for r.ecords requested*   of various discrete groups, chiefly            § 9.2DO(b) is not incongruent with § 9.13
 *under the FOIA. The Act requires            private practice physicians, small           because § 9.2DO(bJ is in Subpart D, radiography and well logging                  "Production or disclosure in response lo affected agencies to use the March *21.

companies, and various other small 1987 (52 FR 10012) 0MB guiaelines in independent entities scattered among structuring their implementing the remaining NRC materials licensees. regulations. The new fee structure 1 Agencies surveyed included the ACUS; It would be impossible to draw a Departments of Agriculture, Commerce. Defense, provisions of the Act became effective correlation between small entities Energ,v, Justice. State, and Treasury. CIA: FEMA; on April 25, 1987. among NRCJJ.~ensees and persons or ICC: NASA; NRC: Postal Service; and SEC. 2~SC-4

PART 2

• STATEMENTS OF CONSIDERATION subpoenas or dem*ands of courts or One commenter recommended information withheld appears in other authorities," and pertains to the deleting the last sentence from the personnel and medical or similar files] .

power of subpoenas and court orders, definition of "record" that reads for invoking that exemption." (New l'ark which is broader in scope than the term "Record does not include an object or Times Co. v. NASA, Civil No. 86-2860 . "agency record," which defines the artic.le such as a structure, furniture, a . (D.D.C. June 3. 1987J) (appeal pending). reach of the FOIA. tangible exhibit or model, or a vehicle or This section implements 5 U.S.C. The same commenter questioned the piece of equipment." In response to this 552(a)(2) of the FOIA, which does not content of paragraph (4) of the same recommendation, the NRC has decided have the threshold requirements definition and asked who would make to re!ain this sentence because the mentioned by the commenter. The the determination of what information is commenter has provided no basis for its threshold requirement found in 5 U.S.C. substantial and what is not. The deletion, and the NRC believes this 552(b)(6) is implemented at § 9.17[a)(6). t;Ommenler also questioned if the provides appropriate clarification. discretionary practice could shield 5. Section 9.21 Publicly A mi/able

3. Section 9.17 Agency Records Records potP.ntial wrongdoing. Another Exempt From Public Disclosure commenter recommended deleting A commenter noted that the proposed paragraph (4) because it duplicates Several comrnenters noted that the section(§ 9.Zl(c)), which supersedes parag;aph (3). As the commenter stated, explanatory information that former!J* . former § 9.7, deleted "final vote of each "Records are either personal records or appeared in § 9.5 Exemptions has been member of the Commission in every agency records, depending upon their deleted in proposed § 9.17, and one . proceeding." Section 9.21(c) specifically content." NRC guidance issued in 1983 commenter suggested that this was due . implements 5 U.S.C. 552(a) which indicated that Commissioners' to a typographical error. When the NRC defines four categories of records which appointment records and telephone logs was revising the FOIA regulations, a must be made public. The NRC dropped were not agency records, as long as the decision was made to list the exemptions exactly as they appear in the reference to final votes because it records did not contain any substantive was not specifically stated in 5 U.S.C.

the law. For that reason, all of the information and tlrey were not 552(a) as a category of records. explanatory information has been circulated for any agency decisionmaking. This view was upheld removed. 8. Section 9.23 Requests for Records One commenter concluded that the in a 1984 decision in Bureau of National removal of the explanatory information* One commenter recommended the Affairs Inc. v. United States, D.C. Cir. from the exemptions will "permit the deletion of paragraph (c) because it No. 83-1138. In that case, the court "held public_ disi;losure of a greater range of pertained to when records were made they were not agency records because NRC documents * * *." As previously available at a contractor's site. The NRC they were not distributed to other explained, the exemptions now track the disagrees, and the paragraph will be employees and because they were law as written. The NRC lists the retained because there is, for.example, created for the persm:1al convenience of categories of agency records that are the possibility that*records could be individual officers in organizing both routinely made publicly available in made available at an NRC Regional their personal and business § 9.21. This commenter also concluded Office..The same commenter appointments." In the event a FOIA that under the expanded scope of recommended a slight modification of request is made for a specific exemption 7 that it will be appropriate paragraph (d) to indicate that "the Commissioner's appointment calendar, for his organization to protect (i) "any introductory 'except' phrase applies to the Assistant Secretary of the

• information which [it] obtains from both sentences." The NRC has made this Commission, in consultation with the criminal history records forwarded to it change.

Commission and the Office of the pursuant to 10 CFR 73.57 and General Counsel, will make a disclosure 7. Section 9.25 Initial Disclosure subsequently provided to the NRC," and Determination determination. (ii) "any information which the NRC has Another commenter stated that the obtained from investigative reports Several commenters addressed this definition of "news" would "be crucial provided by [it] such that the release of section. One commenter concluded that in deciding whether a requester is that information could reasonably be this section will require any NRC

• entitled to the benefits enjoyed by a expected to result in the identification of employee who intends to release an representative of.the news media." The suspects, witnesses, complainants or otherwise withholdable (proprietary) commenter misunderstands the purpose* employees or otherwise interfere with record provided by a licensee to first of the defini lion of news. In the 0MB the effectiveness of an E~ployee obtain the licensee's approval prior to guidelines, it was a part of the definition Assistance Program." It should be noted releasing the record. The commenter has of "representatives of the news media," that the commenter's organization is not drawn an inaccurate conclusion.

and the NRC decided to separate the a Federal agency, so the Freedom of Currently, Part 9 has no procedures term into two separate definitions; Information Act has no applicability to pertaining to the decision to disclose however, this separation has led to . his records. However to the extent that records containing proprietary some misunderstanding, and they are his organization's records are used by a . information; however, io CFR 2.790(b) being put back together to conform to

• Federal agency in a law enforcement does contain detailed procedures for the 0MB definitions. The definition of proceeding, the records could qualify for assuring the proper handling and new; does not require each FOIA * . protection from public disclosure by *a protection -of records containing this requester to be involved in matters "of Federal agency under exemption 7. type of information.
• current events" or "current interest to Another commenter stated that with the public" in order to obtain records, 4. Section 9.19 Segregation of Exempt regard to paragraph (d), the FOIA but representatives of the news media /J1for.mation and Deletion of Jdentif.ying provides lime* for consultation between should be. In addition, in response t(? Details agencies but does not allow "wholesale another comment, the proposed One commenter noted that this referral of requests which are exclush*e definition of representatives of the news section permits the NRC. to delete names or primary responsibility of another media has been expanded to conform and identifying details which would agency." The* commenter has drawn more completely to 01\.ffi's final constitute a clearly unwarranted some erroneous conclusions regarding definition of the term to imply that invasion *of personal privacy, but states routine NRC procedures for processing newsletter publishers are included in that the agency proposal "eliminates the FOIA requests. If the records that this group. threshold test [a determination that the 2-SC-5

PART 2

• STATEMENTS OF CONSIDERATION respond to a FOIA reques1 recei\'ed by JD. Section 9.35 Duplication Ft.-es . (i) The !\:RC agrees witl1 this comment the !'1:RC contain other agency records and the title and introductory text have The commenter questions why the
• been changed .to delete the word among the NRC records, the NRC charge in paragraph (b}[l) was not the segrega1es those records 2nd ascer1ains "duplication.**

same as the charge at the NRC's Public whether or not the records in question Document. Room.. (ii) and (iii) In developing this rule, foe ha\*e been made publicly a'\'ailable. lf NRC followed the 0MB guidelines The cost for duplicating records at the which state that the elements of direct thev ha,*e been. the NRC will relc~ase Public Document Room is one that was the~ If they ha,*e not been made costs are the basic rate of hourly pay of negotiated between the NRC and a publicly available. the J\.'RC will refer private contractor who specializes in the employee performing the task plus the records to the appropriate agency for high volume duplication which affords 16 percent for fringe benefits. The NRC a disclosure determination and. usually. high cost efficiency. In contrast, in 1987, also identified three types of a direct response to the requester. the NRC performed an in-house study of homogeneous effort invoked in the !\:"RC A third commenter recommended a reproduction costs for typical FOIA search and review process-clerical, slight modification lo paragraph (b), requests. The figure derived-20¢ per professional/managerial, and executive/ which the NRC has mlide. The page-is based on the following: Commission-and for each le'\'el. the commenter also requested the deletion NRC established an average salary

                                                 * ' ' the operator's salary. figured on an    figure. After establishing these figures, of paragraph (0 because as a practical      a\*er11ge grade of XP-6/1 for a c:opy machine matter. this procedure has never been                                                            the NRC consulted with 0MB and that bindery worker in the quick copy center end       agency expressed no objection to !\TR.C's followed by NRC." The NRC disagrees           GS-6/1 for the average clerical worker and the provision is being retained.          operating a copy machine in the satellite         methodology or the figures that the copy centers, the machine costs as well as        methodology produced. Moreover, seven

8. Section 9.29 Appeal from Initial copying supplies. These figures were based of the 15 agencies surveyed gave no Determination

• on NRC wide copying costs ovr.r the past
• specific salary figures but indicated that year: A degree of di£Iiculty 8.7 was added the fees for search and review were the One commenter recommended the
• because of the highly.cl!stumized style of actual salary of the e~ployee deletion of paragraph (d) "since it
• work required to copy most FOIA documents performing the task plus 16 percent The represents an internal procedure which that must.be disassembled, hand-fed. remaining 8 agencies indicated specific should be 1ncluded in the NRC Manual reassembled in accordance \\ith*inventory amounts, although there is very little
• rather than the regulations." instructions. This factor of difficulty was the result of time tests performed in the Quick uniformity among the figures .. Tbe NRC The l\i'RC disagrees and is retaining has decided to leave its fees as

                                           . Copy Center in the Plu1lips Building * * *.

the paragraph because "the section tells The base per cost costs are determined by a proposed. the public how the agency processes review of agency-wide figures and thus are. (iv) In response to this comment, the appeals. not subject lo fluctuations in ,.-olume in a review for which the NRC may charge is

9. Section 9.33 Search. Re~*iew. and quantity a_s small as 00:000 pages in a year. defined in § 9.13. This definition follows Special Sen*ice F(!es

• The NRC"s figure of 20¢ per page is the language used to define review in not out of line in comparison with other the 0MB guidelines. The NRC believes Several commenters objected to . that the definition adequately defines agencies. For example. of 15 agencies paragraph (a)(4) which permits the NRC listing fees, the Department of Energy is the types of review effort for which the to assess fees for unsuccessful searches. the only agency with a price as low as NRC may charge. *.

Section 9.b. of the final 0MB 5¢ per page. The average of the 15 (v) No change has been made. The. Guidelines _published on March 2i, 1987. agencies is almost 18¢ per page. For commentef' is incorrect in the assertion (52 FR 10012) states that "Ag!;!ncies these reasons, the NRC will leave that the NRC bas made provision for should give notice in the regulations that paragraph (b)(l) unchanged. quarter-hour time periods in its they may assess charges for time spent" . regulations. searching, even if the agency fails to 11. Section 9.37 Fees for Search, locate the records or if records located Rei*iew, and Duplication of Records by 12. Section 9.39 Search and are detennined to be exempt from

• NRG Personnel Duplication Provided Without Charge disclosure." Further, if an agency One commenter made several The commenter believes the estimates that the search charges wi11 recommendations regarding this section: ca legories of requesters are too narrow exceed S25, the agency must advise the (i) A separate staff charge for and tend to exclude bona fide nonprofit ra*quester. unless lhe requester agreed in duplication should be deleted since public interest organizations.

,.tJvance to pay fees as high as what the costs are.already included in the copy ln responding to public commenti; ,,gency anticipates. Under the Freedom cost; (ii) charges should be based on the regarding this point. 0MB indicated that of Information Reform Act. 5 U.S.C. actual salary of the person performing the legislati'\'e history does not define 552(a)[4)(A}lii) provides for fees,t~*be the search, not an average grade of-all the term "educational institution" (52 FR. charged for search for all requesters employees: (iii) if (ii) is not acceptable, 10013). In response to comments except educational or non-commercial the rates should be reduced to $10 for recommending the definition of . scientific institutions or representatives clerical staff and $20 for professional education institution to be that used by of the news media when the records are staff; (iv) the regulations should make the IRS for institutions qualifying for tax not sought for commercial use. In . clear that review time v,rill only be exempt status, 0MB commented that ii addition, 5 U.S.C. 552[a)[4)(A)(iv) charged once and not for each level of did "not think,it appropriate to tie provides that "fee schedules shall review: and (v) NRC should make clear eligibility for inclusion in the 'education provide for the recovery of only the in the regulations that it will charge institution' foe category to an IRS direct costs of search, duplication, or costs based on quarterahour time interpretation of the institutions' review .. * *. (Emphasis added) periods as the current regulations do. eligibility for tax exempt status" (52 FR Therefore. the NRC has not changed The NRC response to these 10014). The NRC believes it is prudent paragraph (a)(4) of this section. recommendations is as follows: . and exhibits the goal c:,f uniformity to 2-SC-6

PART 2

• STATEMENTS OF CONSIDERATION use th1: same dP.finilions that 0MB has reflects the efficiency of lhe FOIA staff nnd charge foes if the cost of collecting the used. the Division of Rules and Records. fee is equal to or greater thari the fee The NRC believes this intei'pretation itself. *

13. Sec.:tion 9.41 Requests for Wafrer or is incorrect. In order to correct it, the There will be an economic impact on Production of Fees all requesters. However, the most NRC has deleted the phrase*within 10 Most commenters genernll)* believed working days" froin the paragraph. significant economic impact will fall on that this section is too burdensome, that

• commercial-use requesters. In keeping the threshold is too steep to overcome, 15. General Comment with the intent of the Federal user fee and that the Department of Justice One commenter made the following concept, the NRC will charge Guidelines go beyond the intent of the general comment: commercial-use requesters full direct law. Some suggested that the NRC NRC should clarify the status of cost fees for all search for,.re\.*iew, and should not use the 6 questions contained <1rganizations such es nonprofit public duplication of requested records.

in the Justice Guidelines but should use interest grnups and state agencies which do Commercial-use requesters are not-

• the text indicated in the Freedom of no! readily fall within the definitions sci forth considered to be "small entities," and Information Reform Act which consists in the rule. Are such groups entitled to en the NRC believes that assessment of the of only two tests-"if disclosure is in the 11utomatic waiver or do they pay full costs fees will not cause a significant public interest because it is likely lo like commercial use requesters? Similarly, economic burden on them.

what is the status of an individual requesting contribute significantly to public records for his own, non-commercial, use? understanding of the *operations or Estimated Annual Costs for Waiver or full costs? Commercial-Use Requesters activities of the government and is not primarily in the commercial interest of The NRC is following the guidance (Figure of 350 commercial-use requesters the requester." . with regard lo the categories of based on actual 1986 statistics) requesters as defined by 0MB. The Search costs ('/:i Clerical + % Pro-The NRC has independently reviewed legislative history is silent with regard fessional) ..........:.............. :....... .:......:...... $14.QOO the Department of Justice _Guidelines lo nonprofit groups. Within the NRC, fee Review costs [Professional) .................__E.OOO*

*and believes that"the factors adopted waiver requests from these.groups will reflect the intent of the law; however,

• Total estimated costs .................... S31,0QO the NRC has decided to .delete factors 7, be handled on a case0 by-tase-basis."

                                                                                                                *For the remaining three categories of 8, and 9 of§ 9.41(d) as a *result of its               Environmental Impact: Calegqrical                    requesters, the Freedom of Information further reflection of the comments.                    Exclusion                                            Reform Act requires agencies .to provide One commenter recommended, for                        The NRC has determined that this                . 100 pages and two hours of search lime paragraphs (a)(Z) and (b); adding the                  final rule is the type of action described           free of charge. In addition, these **

words "in excess of those authorized by in categorical exclusion 10 CFR requesters may request a waiv*enir

 § 9.39" after the word "fees." According               51.22(c)(1). Therefore, neither an                   reduction of fees, which would normally to the commenter, this would "make                     environmental impact statement nor an                be charged for duplication and search

• clear that the specific information environmental assessment has been time in excess of the initially waived should only be submitted when a fee . prepared for this final rule. amounts, if they can show that their waiver is requested beyond the request for agency records is in the automatic waiver limits."
• Paperwork Reduction Act Statement public interest and is not primarily in The NRC believes that the charges are This final rule does not contain a new their commercial interest.

clearly specified in the Freedom of or amended information collection As a.result of the amendme*n*ts, Information Reform-Act in 5 U.S.C. requirement subjecfto the Paperwork several prim;ipal economic im.p"acts on 55Z(a)(4)(A)(ii) and in the NRC's Reduction Act of 1980 (4~ U.S.C. 3501 et the NRC are expected. Additional regulations at§ 9.39. Therefore, no seq.). Existing requireri1ents were

• administrative effort will be required by change has been m*ade to these two approved by the Office.of Management . the staff to re9ord time spent in paragraphs. ** and Budget approval numbers 3150--0136 processing FOIA-reque~ts, time*spent in

14. Section 9.43 Processing of Requests (Part Z) and 3150--00\l3 (Part 9). , recording staff processing reports, and for o Waiver or Reduction _of Fees time spent _in determining the ainount Regulatory Analysis requesters will be billed. Also, * * *.

One commenter suggested that there The final rule implement~ the

• additional staff duplication effort will be is an inconsistency between paragraphs provisions of the FOIA as amended by  ; required to provide requesters copies (a)(Z) and (a)(5) and recommended
• the Freedom of Information 'Reform Act that must be provided without charge.

revising tlie second sentence in (a)(5) to of 1986 and brings*Part 9 into read, "If the fee is between $26 and $250, conformance with current agency Estimated Annual Costs* for NRC To the NRC may not begin to process the

• practice and several of the major Process FOL\ Requests request until the requester agrees to recommendations of tne Office of the (Figures based on estimated 833 hours) bear the estimated costs." The ~C General Counsel. Staff recording of time ('h Clerical believes that the factors relating to The Freedom of Information Reform + % Professional)............................. S17,000 assessment of fees should be removed Act o"f 1986 established (1) three le\;els Billing Costs ............................................ 3.000 from this section into a newly cFeated of fees, (Z) new .standards for waiving or Duplication of first 100 free pages ** * *
• section,§ 9.40 "Assessriienh>f fees", for reducing fees, and (3) an exclusion from . (23,000 sheets x S.20 per page) ******-~ 5.000 purposes of clarity. *: * *. providing records without charge. Total estimated costs.................... 25,000 The commenter also made the Basically, the NRC will ncit charge fees following observation: .. ..
• for the first two hours of search and the Regulatory Flexibility Certification_

In I 9.43(d). ~e~use ~f th,; ~a~d~tory . first 100 pages cluplica ted for. all As required by the Regµlatory . *~

 *~hall' language, NJ\Cis to be congratulal_ed         requesters, except commercial-use *                  .Flexibility Act; 5 U.S.C..605{b); tbe.. *

• for taking the posi_tion that if will not charge reqiiesters._Any requ!)ster_.mal' also seek Commission certifie*s that this rule doe~

fees if it does ilol acf"i1poil 1i"Iee_waivei' **

• a waiver or reduction* of fees for records not have a significant econcimic)n1p'act'.

requeet-witliin'.1(i da*ys:This provision dearly -in excess of 100 pages. The NRC will not on a substantial number of small *

• 2-SC-7

PART 2

• STATEMENTS OF CONSIDERATION f,ntitics. This fin11l rule implemunts the disclosure of information iden !ified by* pro\'isions, although not on a uniform fn,i,dom of Information Reform Act of licensees as significant for licensed
• basis, of requirements regarding the 1flll6 [Pub. L. 99-570) which includes the activities. This action re-emphasizes the sabmission of applications. See, e.g .* 10 f:st1iulishmunt of three levels of foes and NRC's need to receive complete, CFR 50.30fb). 55.10(d). 61 .20(a), 70.22[e) i;pm:ific pro\*isions H!garding wa1vur or accurate, and limelv communications and 72.11(b). *

  ~s!inf.sment of fees for search. review,          from its licensees aiid license applicants             The Commission's expectation of and duplication of rc,cords. Because the         if the NRC is to fulfill it statutory              m:curacv in communications has not Fl'f:cdom of Information Reform Act of            responsibilities. In addition. the                 heen limited to written information W86 provides relief for all requesters,           Commission is re\*ising its Enforcement            submitted in applications. The except for commercial-use requesters,             Policy to reflect the new rule.                    Commission's decision in a 1971>

through waiver or reductions of foes, the EFFECTIVE DATE: February 1, 1988. nnforccmcn1 action taken against a NRC dues not believe that the majority utility established a comprehensive FOR FURTHER INFORMATION CONTACT: requirement for 11ppllcants and licensees of potential req*uesters would fall under the definition of "small entities" set Mary E. Wagner, Office of the General to provide complete and accumte forth in the Regulatory Flexibility Act or Counsel. U.S. Nuclear Regulatory information to the Commission. In that the Small Business Size Standards Commission, Washington, DC 20555. r.ilse, false statements were alleged to issued by the Small Business TE<lephone: (301) 492-1683. ha\*e been made in the utilitv*s Administration at 13 CFR Part 121. SUPPLEMENTARY INFORMATION: submissions to the Commission on the geology of the planl site. Omissions of Backlit Analysis I. Background information by the utility were also This final rule pertains to the On March 11. 1987. the Nuc:lear evaluated: Two were failures lo present implementation of the Freedom of Regulatory Commission published in the evidence at the Licensing Board Information Reform Act of 1986: Federal Register (52 FR 7413) a propcised construction permit hearings about therefore. no backfit analysis has been rule to codify an applicant's and su11pected faulting*and the third prepared.. licensee's obligation to ensure the omission was the utility's failure to List of Subjects completeness and accuracy its of pro,*ide the Board or.staff with reports prepared by its geology consultan1. In its communir.ations with the Commission. 10CFRPart2 to m11intain accurate records ,md to 1lecisiun, the Commission concluded "that the material false statement Administrative practice and report to the N'RC information identified phrase*in the Atomic Energy Act Illily procedure, Antitrust, Byproduct by the applir..ant or licensee as ha\*ing a LJppropria tely be read to require full material. Classified information, significant implication for the public disclosure of material data**. Virginia Environmental protection, Nuclear health and safety or common defense Electric &: Power Company (North Anna materials, Nuclear power plants and and security. Powcr*Station, Units 1 and 2), CLl-7&- re11ctors. Penalty, Sex discrimination, As discussed in the sta.tement of 22, 4 NRC 480 (1976), affd, 571 F.2d 1:!89 Suurr.e material. Special nuclear considerations that accompanied the (4th Cir.1978) (hereinafter VEPCOj. The m11terial. Waste treatment and disposal. proposed rule. accuracy and Commission decided mateiiality is to be

                                                 , forthrightness in communications to tht            judge~ by whether information has a 10CFR Part9                                      NRC by licensees and applicants for

• natural tendency or capability to Freedoi:n of information, Penalty, licenses are essential if the NRC is to influence an agency decisionmaker; that Privacy, Reporth:)g and recordkeeping fulfill its responsibilities to ensure that knowledge of the falsity of a material requirements, Sunshine Act. utilization of radioacth*e material and statc.ment is*nol necessary for a material For the reasons set out in the the operation of nuclear facilities are fulse statement under section 186 and preamble and under the authority of the consistent with the health and safety of that material omissions are actionable Atomic Energy Act of 1954, as amended, the public and the common defense and to the* same extent as affirmat;ve the Energy Reorganization Act of 1974, security. Se\'eral prO\;sions of the material false statements.

as amended. and 5 U.S.C. 553, the NRC Atomic Energy Act highlight the

• Under this standard, both the is adopting the following amendments to importance of accurate information. inaccurate written statements and the 10 CFK Parts 2 and 9. Section 186 provides that: omissions mc!de by the utility in that Any license may be re\*oked for \iDY case were subject to ci\'il penaltie.s. In

'52 FR 49362 material false statement in the application or subsequent years, the Commission look Published 12/31/87 any statement offact ri:quired under ser.:ion a number of enforcement actions for Effective 2/1/88 18:! * * * .

material false statements. These Section 182 provides that: enforcement actions included the 10 CFR Parts 2, 30, 40, 50, 55, 60, 61, following factual situations: omission of 70, 71, 72,110 and 150 The Commission may a! any time after the fiiing of the original applir.ation, and before information about receipt of draft the expiration of the license. require further reports during oral statements made in . Completeness and Accuracy of \\Tilten statements in order to enable the an informal meeting between the staff Information 0 Commission lo determine whether the and a licensee; statements in a Hpplir.ation should he granted or denied o: *telephone call, letter arid oral briefing AGENCY: Nuclear Regulatory whether II license should he mudifit!d or iha! mobile sire:is form:n*g part of a Commission. revoked. All llpplir.ali..ms 1md statements Jicr.nsee's prompt public notification shi.ll he signed by the i.pplicant or lit:cnsee. system we:e insta!led and operational, ACTION: Finai rule and.statement of Applications for and sta!mncnts made in policy. when in fact they Vl.'ere not: oral r.unnection with. licenses under sections 103

          ----                                    nnd 104 shall be made undr.r oath or                statements to an NRC inspector that

SUMMARY

The !\:RC ii, c:l1!'!1J.n;: ii~ .Rffirmation. The Commission may l'equire licensed material had not been out of regulations to codify tht< u!,:,p!!:ons of 11ny other applic:ations or statements to be storage, when in fact it had been used; licensP.es and applic,mtb for liu,nses to made under oath or affirmation. and erroneous statements in response to pro\*ide the Commission '"ith complete This need for nccurnc\' in an IE Bulletin concernini the use of i:ommunications has been empha~ized certain lubricants and fasteners.

and accurate information. to maintain The Commission*s General Policy and accurate records and to pro\"ide for through the 11doption in licepsing Procedure for t,;RC Enforcement 2-SC-8

PART 2

• STATEMENTS OF CONSIDERATION Ac.;tions. 10 CFR Part 2. Appendix C. Commen!: Several c;ommenlcrs Response: No specific set of reporting originally pubiished on March 9, 1982 [47 exprr~ssed the view that the reporting requirements. such as those alrea'dy FR 9967), specificelly dealt with req11ire:ncnls of paragraph (b) are \*ague existing under NRC regulations, can enforc.:emrmt for materi.al false and difficult to implement; what is
• ever be expected to cover all possible statements. In March HJ84, after several "significant" is not defined. and cautious circumstances. and for this reason a years of h,mdling enforcement cases licensees will flood the Commission residual requirement bl'considered.

. under the VEPCO holding and this with information. appropriate. enforcement policy. the Commission Response: The Commission believes Comment: Several commenlers specifically solicited comments on that the requirements of proposed thought that the two-day period for w*hether the Commission should paragraph (b) are suffidently clear that notification of the appropriate Regional consider changes to its policy on licensees will be able lo determine "'hen Administrator was not long enough. material folse statements. (49 FR 8584, reporting is required. The standard for Response: The Commission believes March 8, 1984). Comments recei\*ed in reporting is not so broad that licensees that, once a licens'ee recognizes response to this solicitation were  ::;honld have difficulty recognizing it. For information as having significant summarized in the Maret, 11. 1987 example, the rule docs nol require implications for.public health and safe!~* notice. licrmsees to predict what the NRC will or the common defense and security, On August 31. 1984 the Commission likclv deem to be "material"

• two working days is ample time in formally established the Ad\'isory info~l'T'ation. an arguably vague which to report the information. As Committee for Review of the standard; rather, t!ie standard is or.e of a noted below, this notification may be.

Enforcement Policv, a small committee oral. licensee's own recognition of ofindiYiduals sele~ted from outside the Co_mment: One commeriter qu1:stioned information with significant health or whether the notification was to be oral agency, to conduct an in-depth study of safr!ty or common defense 'or security the enforcement program. (49 FR 35273, or in writing. . SeptL'fllber 6, 1984). In addition to implications. This is a standard that the Response: The notification may be considering the comments already Commission should reasonably expect oral. *

• submitted lo the Commission, the licensees to understand and apply. Comment: One commenter saw some Committee solicited further comments Moreover, the notice of proposed ambiguity in the proposed rule with from interested persons on the extent to rulemaking gives guidance, in the form respect to the relationship between which the NRC's enforcement policy had of examples, as to what could indicate paragraph (a) and paragraph (b); since been serving the purposes announced by recognition by licensees of the the intent element of paragraph (b) does the Commission, including the policy on significance of the information. As noted not appJy to omissions under para*graph material false statements. (50 FR ].142. in \iEPCO, no specific set of regulations (a). and most information can be linked January 9, 1985). Public meetings were Gan be expected to cover all possible - to some licensing submittal or construed held by the Committee during which 46 r.ircumstance*s; within this constraint, . to be covered by paragraph (a.). It was witnesses drawn from NRC staff, the Commission believes the . suggested that the rule be clarified to licensees, industry groups and law/ 1*eq11irements of paragraph (b) are include all omissions under panigraph consulting groups gave testimony to the dew*ly set forth. (J:>). to avoid an "overly broad ..

Committee, many of whom commented Comment: One commenter expressed enforcement policy. on the material false statement policy. the view that the pro\'ision that the Respoifse: The Commission does not The Committee's conclusions and *requirement is "not applicable to wish to limit violations for omissions

• recommendations are summarized in the information * *
• required to be . to situations involving an element of March i1, 1987 Federal Register notice proYided * *
• by other requirements" intent, as the commenter has proposed.

proposing this rule.

• r:ould be interpreted lo mean that Paragraph (a) and paragraph (.b) impose paragraph (b] does not apply to power two distinct requirements. Paragraph (a)

II. Analysis of Public Comments codifies an applicant's and a licensee's reactors. In response to the March 11, 1987 I'..esponse:The provision that the n,ie obligation lo ensure accuracy and Federal Register notice, the Commission is "not applicable to information* *

• complcteness*of communications with received comments from Z3 required lo be provided * *
• by o!hcr the Commission or in records required organizations arid indi\'iduals, including requirements is intended to make clear by the Commission to be maintained.*

utilities: law firms, citizens' that the rule requires the reporting of Paragraph (b) pertains to a licensee's organizations. a medica.J physicist, a resirlual information not covered by one obligation to report information commercial testing laboratory, and other of the specifio reporting requirements. identified by tb~ licensee as significunt. members of the public. Copies of the

• and is n.ot intended io exempt power notwithstanding a non-reportability c.omments mny he examined in the reactor licensees from the pro\'ision. determination under other reporting Commission's Public Document Room at requirements. While intent is an 1717 H Street NW .. Washington, DC. Comment: Some commenters expressed the view that paragraph (b) is appropriate element of a violation under The comments, summarized and paragraph (b]. it is not a necessary respondP.d to below, have been unnecessary. They felt that paragraph (a) of the proposed regulation provides .element of a violation under paragraph ca1,*gorizP.cl under the foliowing topics: (a).

the necessary degree of confidence that

11) Licensee notification of signiiicant Comment: One commenter argued information that is significant enough to information; (2) legal issues: (3) material have implications for the public health that proposed § 55.6b(b). which imposes false statements; and (4) completeness and safety or the common defense and a notification requirement that runs of information. security will be provided to the direct!}' to indh.-idual licensed operators, Commission. In the same vein, others inle~fercs with mam1gerial prerogali\'es Licens,w Nollfir:otior, of Sign(ficant and subjects individual operators to lnfurmation noted that the Commission cites no instance where a licensee discovered. serving two masters.

M.iny commenters opposud the but was able to conceal. some Response: The Commission has aduptiun of paragraph [b) of the significant information because ii was decided to delete proposed § J5.6b(b) regulation, in its entirety. A variety of not specifically reportable; therefore, from the final rule. The Commission masons were given as to why paragraph since no need for the requirement has appropriately looks lo the utility (b) should not be udopted. been identified, it shouid not be licensee to evaluate the"safety imposed. ~..gnificance of information identified b)* 2-SC-9

PART 2

• STATEMENTS OF CONSIDERATION its employees, and to notify the NRC-of requirement", a~guing that section 182 of AEC, 400 F;Zd i78, 783 (D.C Cir. 1968).

information having signific!lnt safety or the Atomic Energy Ac! does not and not granted sufficient authority for security implications. Employees are authorize the imposition of a generic the Commission to require expected to notify company recordkeeping requirement or generic communicatiens, regardless of the management of information of which notification requirement. format, to be complete and accurate. they become aware that m11y have such Response: The Commission has The public heahh and safetv and implications. Appropriate company extensi\'e statuton* authorit\' in addit:on common defense and security require no officials would then be required to to section 18.'.! to r;quire lice.nsees and less. *Under the new regulations. civil determine the significance of the applicants lo report complete penalties wuuld b~ authorized under information and rcportability to the. information and to maintain accurate section 234 because the regulations are Commission. NRC's adoption of a rule records. That authority is derincl from issued under the enumerated licensing.

• which would place on the individual the licensing provisions in the Atomic provisions in section 234(a)(1J. 1n operator an obligation to report Energy Act and the rulemaking authority addition. a violation of these regnlations infurnrntion directly to NRC. of section 1610 of the Atomic Energy would constitnte* a* violation for l'l'hicb a independent of tlie employee's Act. which permit the imposition of license could lie revoked under section obfigation to report such information to reporting requirements and 186. Un.der section 186, a lrcense can be his employer, would place the indi\'idual recordkeeping requirements. Neither revoked "ror failure to meet a regulation, in a situation involving potential conflict Paragraph (a) of the new rule. which including the communication r!!gnhrtfon.

with his management (if the ernplo~*ee codifies an applicant's and licensee's Finally. the Act permits a license to be thought the information was *significant obligation to ensure the accuracy of its revoked because of conditions whfch and his employer did not), without communications with the Commission, wo1..lld warrant refusing to grant a appreci11bly enhancing the agency's nor paragraph (b). which codifies in license on an origfnal application. ability to obtain needed safety mo.dified form the "full d.isclosure" Clearh*: the Commission woula nor have information. Seclion 55.6a(a) of the aspects of the VEPCO decision. creates issu*ea" a license to persons who were proposed rule is being retained, and any new .obligations for licensees and not committed to providing complete appears as § 55.9 in the final rule. applicants.

• end accurate information in an of their

   *com,'7lent: A number of commenters         . Comment: It was also argued tha1          ccm.munications to the Commission.

criticized the rule for imposing a section 186 of the* Atomic Energy Act JHatericl Felse Statenumls reporting requirement only 011 permits revocation of a license only for information which an applicant or a material false statement in connection Most c6mmenlers endorsed. as a licensee determines to be significant. positii1e proposal, the Com~i;sion's with a license application or with. Some thought this provision will allow statements prodded in response to a decision to exercise its cfiscretfon in the licensees to evade the rule bv never request under section 182. application of the term "ma1erial"false finding any information to be significant. Response: The commenter's statement" to miscamrnunications and* One commenter said that leaving the conclusion is ha~ed on his reading limiting the m,-e* of the term to situations decision to the utilities as to what is sections 182 and 186 of the Atomic where there is. an element or*inteEt.

"significant" essentially amounts to an abdication of responsibility by the NRC .. Energy Act to say that a material false      They expressed the*view that. careful st11tement can exist only when the           IISt! of the Jahr.ii "material false Re.~ponse: While deference is being given the iicensee under the rule, it is      statement in question is contHined in an     statement" should assure .that any not absolute nor is it an abdication of       applica1irm or sought by the NRC under       adverse connotation associated vdth its the NRC's responsibilities. A licensee       section 102 of the Act. The commenter is      use is justified.

cannot e\*ade the rule b:i1 never "finding" both misreaping section 186 Hnd Commem: A fow cc*mmcnt.ers opposed information to be significant. The fact misconstruing the basis of authority for narrowing tbP. appJicafion of the term that a licensee considers information to the ne*w rule. One can mak!" the **material false !<:at~rnent". In their view,

• be significant can be established. for argument that a li:eral n,ading of the retention of the ffi.J terial false statement example. h!' the actions taken by the A:nmic E;;ergl' Act rP(jlrires a false J.rnguage (anrl iis negiitive connotc1tions) licensee to e,:aluate that. information. s'.alemcn: lo be in an apphca1ion or a for a bro11d range crf communicaiion Thus. even though the rule contains a r1:5por:se s:Jugh! b}* the !\'RC under errors would provide more i-t1centive for subjective test in requiring reporting of &fc!r.tion 182. Howe-.er. the col:li1 in licensees to report information in a information a licensee recognizes as VEPCO heid that the Corrr.missfon's timely and complete fashion.

significant. there are objecth*e indicia of expanded interpretation of section 1S6 Response: As many commenters have recognition that can be used by the ~RC pet*initt~d the term "material false point<!d out, a charge of material false in determining whether a licensee in fact stc1lt:rnents" to em;omp-.rss omissions as statement is equat1:d* by most. people recognizes the significance of the well as affirmative statements: with lying and an intention k> mislead. informa*tion in question. The }.foreo-rer, the Commrssion's long Because of thh connotation. the Commission belie\'es that the rule as standing practice since _the VEPCO Commission beTieves the charge should drafted. requiring reporting of significant decision has been consistent wtth the be reserved for suc:h communication information on!v when licensee VEPCO interpi:eta-tion to reach failures. recognizes ii as.such. offers more ~!atements and omissions not contained Under prior policy. a material false guidance to a licensee than a in an app!lc;ition or section 18~ statement could be either an affirmalive formulation which would require a rP.&ponse. statement.. oral or w.ri.tlen,. or an licensee to try to predict what the l'\fore importantly. the new rule does omission.and could be unintended and Commission will deem to be material. nol utHize the term "ma-terial false inedv.ertent as well as intenfional. The and is sufficiently specific to diswurage s:atemerrf" and is not based sol~y on Commission believes that appJ.ication.of attempts to evade the rule. sf'ctions 186 and 182. Ratner. the rule is the term mate.r:ial false sta.tement to all also based on the licensing,provisiorrs of of these situations is not as effective in Legal Issues the Act and section 161.11 is improving accm:acy and completeness of Cc.rnme11t: One commenter questioned i;iconcefvable tha1 Congress would have information as the reser.v.ation of this the Commission's legal authority lo es:ablis.hed the broad regn?arory label as an additional enforcement tool imppse an "additional recordkeeping authority in the Atonric Energy Act, in egregious situations. The rule ""'m requirement" and a **new notification which is considered unique. Siegel v. minimize the potential of persons not 2-SC-10

PART 2

• STATEMENTS OF CONSIDERATION providing information because of a. fear and. wHI exact superfluous information, applied to all files generated for .

of being labeled as a submitter of a Respanse: Since the Commission. in licensee's internal use, such as quality'* material* false statement. reqniring completeness of information. is assurance [QA) files .. Commenl* One comm1:;nter criticized not imposing a new requirement. it does Response: It has always been implicit the rule for not containing a definition of not expect to*see an increase in tr.e in the Commission's requirements that.a material false statement. amount of information r.eported by a licensee maintain certain records that Response: The Commission has, licensee or. applicant. as a result of this those rec'ords accurately reflect the decided to exercise its discretion in the codifies tion of existing policy. llr.livilies documented. An incomplete application of the term mater.ialfalse Commen!: Another commenter QA file is*a violation of existing s ta lement by limiting the use* of the *12rm expressed the view that reporting as requirements. The explicit statement in to situations where there is an element much information. as possible during an paragraph (a) of-the new rule of the of intent. As emphasized in the *- event can conflict with providing

• standard of accuracy of records required statement of considerations complete and accur.ate information: in by the NRC lo be kepi does not in any .

accompanyit1g botll the.proposed rule practice. the requiremen1 may ttmit way change existing recordkeeping . and this final rule, the Commission is* inform.l.tion exchange during an ineident requirements or add to the kind or reserving the use of this label as. an to information known to be accuiate.. mt lure of records expected lo be

• additional enforcement tool in egregious Response: llr.s described abo'l."I!", since maintained.

situations, which will be deter.mined on the Comrnission,:in requiring*complete III. The New Regulations

a. &ase.-by-case basis:. With the adoption

• and accurate information, rs not of this rule, the Commission wiH have imposing a new regufrement, it does not After careful consideration of all the the mechanism to apply the fuH range of expect to see a significant change i-n comment~*received, the Commission h~s enforcement sanctions lo inaccurate licensee or applicant beha:v:ior in deleted proposed§ 55.6b[b), which.

communications or records without reporting as a result of this codification would impose a notification reliance on the tenn material false of existing:pcrlicy.

• requirement, running directly to licensed statement.. Thus, tlfe label. af material Commeiir: Some comm.enters stated operators and.senior operators, for false statement is no longer significan~ Iha t oral communications shoul'd be significant information, and otherwise from a legal perspective, excluded from the rule, "On fairness 1Jdopted the amendments in the same Moreover, the Department of Justice* grounds. One commester:noterl that in form that they appeared in the March 11, supports the Commi'ssion's decfsion not telephone communications the data 1987 Federal Register proposed rule.

to define a maleMal false sta1ement, in** transmilted and the data received' are The new regulations include identical \'iew of the potenlia-1 for confusion not always identical in that people provisions in Parts 30, 40, 50, 60. 61, 70, bet*ween the Commission's use of the* 71;72. anli 110 which contain tv.ro interpret communications wf1hin their term material false statement in its civil .own terms of reference. Moreover, whcu elcmenis: [a) A general provision which context and criminal prosecutions for an inadvertent error is made in an oral codifies the current policy which material false statements under 18 communir.ation, a calf back to c<Jn Pct requires that all information provided to u.s.c. 1001. the error. in the view of this commenter, the Commission by an app1icant or CommeJ'lt: One commenter objected to would be an admission of a violation of liccnst,e or required by the Commission the use of the term -careless disregard" the rule.

• lo be maintaimid by the applicant or which is used in the statement o~ Rf,sponse: The rule covers all licensee shall be complete and accurate considerations accc,mp,inying the c:ommunications."However, the in all material respects: and [b) a proposed rule to illustrate a situc1tion Commission intends lo apply a rule of reporting requirement lo replace the full where a mateJial false stah:ment label rmtson in assessing completeness of a disclosure Hspects of the current might be appropriate. To the comr.,enter. communication. For example, in the material false statement policy that the concept of '"careless dlsregarc" Ls context of reviewing an initial . would require iipplicants and licensees appropriately used in the*context of Hpplication or a renewal application for to report to the !\'RC information negligenl'behavior and Flot where there a license. ii is not uncommon for an identified by the applicant or licensee as is an element of in\enL N'RC re\'iewer to seek additional
• ha\*ing n significant implication for the RPspense: The concep.t cf '"careless information to clarify his or her public health and safelv or common undcrstllnding of the information defense ,ind security. The amendment to disregard" goes beyond simple alreHdy provided. This type of inquiry P;irt 55 cont;ilns the first element onlv.

negligence. as the term has been applied by the NRC does not necessarily mean S£'clion 150.20 is being amended to

• in judicial derisions d1,.fining willful that incomplete information which provide th.it when an Agreement State conduct and ai. it bas been applied by would violate this rule has been licensee is operating within NRC's this a8ency. See, e.g~ Trans World jurisdiction under the general license Airlines, Inc. V. Thurston. B3 L.Ed.2d submitted.

granted by § 1!i0.20. the licensee is 523. 537 (1985): Reich Geo-Physical. me_ Normally, an inadvertent errori.n an subject to the 1Jbove requirements. ALJ-85-1. 22 NRC 94!. 962-63 [1985,J. oral communication that is promptly corrected will not result in an These regulations are being issued "Careless disregard" connotes ,; under the Commission's authority in reckless .:egard. or callous G1:ir enforcement action. Further guidance on oral communications is.provided below sections 62. 63. 65. 81, 82, 103, 104, 107, indiffeT-ence toward one's 161c.161o.182, and 274. as well as responsibilities or the consequences of in the discussion of Enforcement Polic\l Hssocialed with the rule.

• section 186. of the Atomic Energy Act of one'.s actions, .and, in that sense it* 1954. as amended. In addition, while appropriately desccibes ci:rCll.mstances Comment: One commenter noted that only a \"ery small.percentage of section 186 can be read as addressing in. which the Commission, m~* apply the only material false statements made in term "material false statemen.t:* documents maintained by a licensee undergo the kind of scrutiny given to certain contexts. the scope of the Cbmpleteoess of lnformatian duc:umenls actually provided to the NRC Commission's responsibilities under the as an affirmative representation of what Atomic Energy Act of 1954, as amended.

  . Con~meDt: One commentar thought

• and the Energy Reorganization Act of that the* requb*ementim paragr.ap:h [.a} for it believes to be correct information on which the NRC should rely in licensing 1974. as well as the Commission's

completeness of information". i.f decision in the VEPCO case and interpreted in a, strict sense. may or regulating a plant. The commenter predicted a "compliance nightmare" if subsequent enforcement actions under encompass more*thari the l:\i"'RC intende~. that statement of the Jaw, make ii clear the standard of completeness were 2-SC11

PART 2

• STATEMENTS OF CONSIDERATION that the Commission has the inherent Commission must be complete and be repoI1ed.

authority to require communications accurate in all material respects. It is Therefore. the rule provides that if a with the aoency un reau)atory matters to clear that when the Commission lit.ensee or*an applicant identifres be complete arid accu;ate regardless of establishes a requirement that a licensee idormation wtJch has significant their context. Under section 186 of the generate records to document a implica.lions for pub!ic health and safety Atomic *Energy Act. failure to observe particular licensed f!Ctivity. inherent in or the com::nor. defense and security, it any of the terms or provisions of any that requirement 1s the expectation that rr.ust be rer:orted to the Comrrussion.

• regulation of the Commission is an those records will accurately reflect the The rule r.;-~kes clear that reportinii explicit basis for revocation of a license. activities accomplished. In the past, under this sE:c:tion :snot required- if such Thus, with the adoption of these new when the Commission has discovered reportir.g would duplicate information regulations regarding accuracy in that inaccurate .or i~corrtplete records alread~* submitl~ in ace.er.dance with communications and records. a violation have been developed or maintained, *other requirements.such as 10 CFR of paraoraph (a) or (b) of the proposed citations have been issued for violation 20.402-20.4oa 21..21. 50.34. 50;n. so.n; rule may *be grounds for revocation of a of the underlying recordkeeping 50.13. and 73.71 ..

license as well as imposition of civil requirement. Now thai the Commission The purpose of the n;porting penalties under section 234 of the is adopting a regulation which states a requirement whjch* is being imposed is Atomic Energ_v Act. generic requirement for accuracy in to provide clear notice that if any The final rule codifies in a uniform information made available-to the applicant or-licensee recegnizes*it has. manner an applicant's and a licensee's agency, it is deemed desirable to information with si~ficanl health or obligation, as articulated in the VEPCO explicitly refer to information kept in safety or common defense or secur.ity decision, to ensure the accuracy of its records pursuant to Commission .implic:ations, the informatiim must be* communications with the Commission. requir~ments for inspection by the NRC. reported to the NRC notwil.hstanding the The provision docs not create any new as well as information submitted to the abs~qce of a specifkr.epar.ting obligations for licensees and applicants; NRC, since the standard for accuracy .rel'Juiremen-t. Submi~sion of a report rather. it describes-in a regulation rather and completeness is the same for all depends upon tl:ie lil':ensee's reco~nitim, than in an adjudicatory decision, the information in whatever form it is made uf the,signHicanr.e of the infom1<1lion. standard for accuracy and completeness il'Vaiiable lo the Commission. This The codification of a full disdost1re to be adhered lo when supplying exptici! statement of the s.tandard Qf requirement in this manncrshou!d net information to the agency or when accurnc;- reouirecl for records does not result in additio:nal burde~s bn gcneruting and maintaining records in ,wy ~a) ~har..ge e:>.:isting . applican.ts and licensees. Licen~Bes and required to be kept by the Commission. rt>cordkeepfng requirements.or add to applicant.s*-,,,,;11 not be re.quii!ed to The standard described in paragraph [a) the kind or nature of-records expected lo develop formal programs simi.lar to of the proposed rule, "complete and Lr- maintained. those prescribed undef' 1-0 CFR Part 21 to accurate in all material respects," Like paragraph (a"), paragraph (b) identify, evalu,.,te, and repQr.t continues the degree of accuracr creates no new obligation to report informatien. What is expect-ed is a prescribed in the VEPCO decision; that information lo the Commission. Ra.tJ1er, professional attitude toward safety is. any information prm:ided to the ii merelv codifies in a modified form the throughouf a licensee's or applicant's Commission or maintained in records "ft,!] dis.closure" aspects of licensees' organization such*thal if a per!!on required by the Commission which has and applicants* obliga;tioris established iden.tifies some potential safety the ability to influence the agency in the b1* the \'EPCO decision. In. that decision information, the information wi!J be conduct nf its regulator)." respor.sibilities the Commission recognized* its freely provided to the appropriate must be complete and accu;-ate. obligation ~,o promulgate regulations company officials lD determine its Under this rule. not onlv material which pron de clear, comprehensive significance and reporlability lo the incorrect informi:ltion. written or oral. guitlance* to.app:!ican.ts aIJd licensees." Commi~.sion. but omitted information which causes but went on t.eJ conclnde that, While paragraph (b) def~ to the an 1:lffirmative statement to be [T]he fact remains that no specific set of licensee'r. judgment of the significa.,,ice materially incomplete er inaccurate. will regulations. however carefully drawn, can be of information, the licensee's ex?>ected lo cover all possible circumstances: "identification" of the significance of the be subject to sanctions. The rule uses Information ma-y come frum' unexpected the phrase "provided to the NRC" rather information* need not be in the form of a sourc,!s or take a:c unexpected form..bu, if it. specific documented decision before a* than "submitted to the NRC" to indicate is nm !erial to the licensing* decision and* that all comm\mications. oral or written, therefore to the p:ibiic health and safety, it violation of the* ruJe exists for failure to throughout the term of the license. not mus! be pP.s;.ed on lo the Commission* if we repor.L An applicant's or license~*s . just at the application stage. are .;re to perform our task * ." *. recognition of .iniorma lion as significrnl expected to be complete and accurate. could be established bv t:ircumstancial'

                                                 \'EPCO al 489. Since the initial               evidence such as specffic meetings being The Commission intends to apply a rule         descri:ition of the .. full disclosure**

of reason in assessing completeness of a held to discuss the. ma.tter. anah:ses reouir*emeni in VEPCO, however, periorrri"ed or other internal actions communication. For example. in the reporting obligations for subs'laritial *taken to evaluate the matter. 1n context of reviewing an-initial  ?.dciitional categories of significant application or a renewa1 application for addition, abuse of of e lice11see*s safetv information have been responsibHity under paragraph (.b). if not a license. ii is not uncommon for an cffir~,.;itive!y established. e.g .. 10 CFR punishable as 8 vio}a,tion of pan1graph NRC reviewer to seek additional 21.21. and 10 CFR 50J.Z and 50.73. Both. (b). could be addressed by the information to clarifv his or her material and rea-ctor licenses contain Commission under its a.u.thorily lo issue understanding of the information numerous reporting requiremtffitS.. Most orders. to modif:,,.*, suspend or revoke a already prodded. This type of inquiry safety information which a licensee may license. For example. an order would be by the NRC does not necessarily mean develop will likely be required to be appropriate where the action of ii that incomplete information which reported by some specific reqnirement. licensee in not recognizing the would violate this rule has been 1\:evertheless, there ll1ay be some: significance of the inforµia lion cilld submitted. circumstances where a licensee failing to report it, together with other This new provision also makes pcss*esses som1f residual ipforma tiOll . relevan_l facts. raises serious questions explicit the requirement that records v:hich could affect licensed activ.ities about either its cmnpetenq, or its required to be maintained by the but which is not*otherv.*i-se required .to trustworthiness. 2-SC-12

PART 2

• STATEMENTS OF CONSIDERATION Final1I, the Commission has decided Appendix C {Enforcemen! Policy). information which was wrong or not lo exercise its discretion_ in the 1'1odificaliDns to !his policy lo rP.flect the provided. and (7) the reasonableness of application of the term maleiia-1 false new rules and. the r.hanges JQ the explanation for not providing statemen1 bv limiting use ef the term ID Commission policy P-r.rno.unce<l hl:'re ,ll'e complete and accurate information.

situations \~;here there i~ an eien11mt of* being pi:!blished concurrenJJy with these Ament* at. least careless disregard. an in lent. A charge of materiai i.rise new rulE$. incomplete or inaccurate unsworn oral statement is eeuated by the puhlic and A violation ef the regu! .. tivns on statement normally will not be subject most people in. the industrr with lying .submitting comploe.te and accurate .. to enforcement action unless.it involves and intention to misled. Yet under the information, whether or not C(.Jnsiu.err.d significant information provided by a current policy, a material false a material false statement, cafl resiih in licensee official. However, enforcement statemenl under the Atomic Energy Act the fu.11 range of enforcement sanctions. action may be taken for an can be either an affirmative statement. The labeling of a comrnuniccliun failm:e unintentionally incomplet.e or inaccurate oral as wen as wri.tten, or an omission, as a material false stateme!li will be oral statement provided to NRC by a and can be unintended and inadvertent made on a case-by-case basis. and* will lir:ensee offir:ial or others on behalf of a as well as intenti,mat be reserved for egregious violations. licensee. if c1 record was made of the Th.is change recognizes the negative Prior cunsul1alion with the Commission oral information and provided to the connotations which ar.e associil t-ed* by *will r.ontinue for those cases in which licensee thereby permitting an the public and the industry with the . tlw staff recommends using the material opportunity to correct the oral

• term material false statement but retains fa!1:e i::tatement label. Violations information. such as if a transcript of the the ~e of this la be! as an additional invoking inaccurate or incomplete communication or meeting summary enfor~1iment tnol in egrr.gious si.:ualinru;. information will be categorized based containing the error was made available which will be de1erminP.d on ,i ;.BSe-by- on the guidance in the Enforcement to the licensee.

cuse b1lt;is. The Commissicm cxpcctr, to Polic\', Section Ill (Severity of \'\'hen a licensee has corrected use the t,,rm rarely because with the Viol~tions). new Section VJ (Inaccurate im1r.curate or incomplete information. adoption of this rcle. the Commission ,md Incomplete Information). and the .. the decision to issue a citation for the will° have the mechanism to apply the n*visE:d Supplement VII. Consistent with initial inaccurate or incomplele full range of enforcement sanctions lo the existing supplemen\. willful . information normally will be dependent im1ccurate communications or recn~ds c:c,rnmunication*s failures or on the circumstances, including the ease wi'fhout reliance an the \erm material communications failures regarding very of detection of the error. the timeliness false state.men!. Consequenily, the significant information are categorized of the correction. whether the NRC or Comm:ssion sees no need to develop a al a Severit\* Level I or II, nnd other the licensee identified the problem with specific: definition of tbe term "material ~ignificant communication failures the communication. and whether the folse statement." 1 The Departm,:nl of nornrnlly will be ca legorized at a NRC relied on the information prior to Justice supports this ;ipprnach in vi~w of Severity Level III. Less significant the correction. Generally, if the matter the potential for confusion from the. failures normally will be calegorizP.d at was promptly identified--and corrected Commissioo's use of the t.erm mHlenal ii Severitv Level IV or V as appropriate. bv the licensee prior to reliance by the false st.itementin its civil conlcxt and Guidanc~ on tf!king enforcement action NRC. or the NRC raising a question criminal prosecutions for mc1teriaT fn!si; fur incomplete or inaccurate information about the information. no enforcement st11tements lmde= JB U.S.C. 1mn. ,ind the faih1re to provi.de significant' action -will be taken for the initial Howe-ver. should a violation of the information identified by a licensee is inaccurate or incomplete information. proposed requirement for complete and found in the new Section VI and the On the other hand. if the misinformation

• Hr:curaH, inform,ition be labelec l!S a ni\*ised Supplement VII of the revised is identified after the NRC relies on it. or material fHlse statement, it is e:,.,;:,£:ected Enforcement Policv. . after some question is raised regarding that the communicctian failure wiD The Commission recognizes that oral the accuracv of the information, then involve, for exa:n;:,le. instances [J) information ma\' .in some situations be some enfor~ement action normally will where an inaccunttP or incnmplete inherenth* less ~eliable than written be taken even if it is in fact corrected.

wri!ten or sworn oral statemenl is m:,de submittais because of the absence of an However. if the initial submittal was knowing the stat~menl is im1ccurale or opportunit~ for reflection and accurate when made but later turns out incomplete. or with careless dis, eg,ird niam1gemen'l review. Howe\*er. the to be erroneous because of newly for its accuracy or completeness: or {2.J Cor:1mission must be able lo rely on oral -discovered information or advance in where an inaccurate or ir..camplete c:onimunications from licensee officials technology. a ciiation normally would unsworn oral statemenl is made with a concerning significant information. 2 not be appropriate if. when the new clearlv demonstrable k:'rnwledgf' of iJs Therefore, in determining whethet to information became available. the initial imicc~r;ir:y or incomp!Et.eness. take enforcement action for an oral submittal was promptly corrected. statement, considerafion maS* be given IV. Enforcement Policy The failure to correct inaccurate or to such factors as (1) the degree of incomplete information which the

      'fhe c~imwjssion*s exis!i.ng material                            knowledge that the communicator lir.ensee does not identify as significant false SlaleroenJ pDricy is Ct:rren\iy                                 sho1.1ld have had regarding the matter. in normally will not constitute a separate reflected in the Genera.I StalemP.n,t oi                              view of his or her position, training. and violation. However. the circumfilances Policy and Procedure f.or NRC                                          experience, [2J-the opportunity and lime surrqunding the failure to correct may Enfo;cemenl Actions, 10 CFR Part 2.                                    .ivailable prior to the communication to .

be considered relevant to the . 11ssure the accuracy or completeness of determination of enforcement action for

• Any d,rtract~rizalion or*use which 1he lhe information, (3) the degree of intent Commission giYes ~o*lhe tcr:n ~a1erial f.;~s~...

the initial inaccurate or incomplete _ or negligence, if any, involved, (4) the statnment as used m tht* A1om1~ Enc~} r\C., oJ 1!)~.;. statement. For example. an _ formalitv of the communication, (SJ*the as ;im<,nded. is. or ~'tlurse. limilcd to the unintentionally inaccurate or incomplete G:omm:ssirm's ci\'il enfon:t~m~nf at.Hons dnd hc:s no reasonahh,ness of NRC reliance on the submission mav be treated as a more lt"gi,I impi1CI on th_e m1wning g:*.. en 10 s:imilnr termF information, (6) the importance of the and phrases usP.d in other statutes. e.g_. 18 l*.S.C. 1 severe matter if the licensee later 100:. or on the ,mthurity of the Dc;,anment of determines that the intitial submittal Justice to pros~1:u1e undi:r such !-:tatutPs._Thus.

                                                                       * 'A licensee officiul means a first line suptonis~r     was in error and does not correct it or if regarrll~s,; ofwhal enforcement acthm ~.RC rnaJ' or atw,*e as well as a licensed indi,*idu~I. Rad1ahon Safot,* Officer. or a.person listi,d on* hc:ense as an    there were clear opportunities to
 .hike fot a coinmunh:etion foHiJre: lhc fmh.iiC ma~; h,..
*t.ubjcct lo criminal sanctions.                                       uuth~rized user   or licensed material.                  identify the error. If information not 2-SC-13

PART 2

• STATEMENTS OF CONSIDERATION corrected was recognized by a* licensee adjudicatory decision as the only in all material respects. The Commission as significant. a separate citation may statement of the requirement. has determined, therefore, that the
• be made for the failure to provide Codification of the.requirement will give backfit rule, 10 CFR &0.109, does not significant information. In any event, in the regulated community more explicit ai:nly to the rule ..

serious cases where the licensee's and accessible notice of the standards actions in not correcting or providing of accuracy expected of ii and will give List o!" Subjects information r.aise questions about its the Commission greater flexibility to JO CFR Part 2 commitment lo safety or its fundamental c1!!orce thcsl! sldndards without t.ustworthine~s. the commission may un:1ect:ssa:-ily appiying the label Adminis'-*a,i*.-e ;11.,ct,c,: .inJ exercise its authority to issue orders material false sta!P.m<!nl to p1*ocec.lure, Antitrl.!st. B_. p: d~!1Jct modifying. suspending. or revuking the r:ommunir.ntions frnm ]jr;,;nsee:s and material. Classifir:d inbrr.:ation, . license. The Cc,mmission recognizes that applicants. In view of lhe exlens-ive . Envirunr.ienta! pr0tection. Nudcar enforc:1!mc,nt de,terminations must be pul,lic cr:mmcnts end the - mater/els. NLJclcar puwer plants and m<1de on a c<1se-by-case basis. taking reaclors, Penaltv. Se:,, disc,*imination. recommendations of the Advisor\' Sourer maleriaf S;:)(:cial nuc:Lar into consideration the issues described Committee for P.eview of the - above .. materbl. W .is:e tr .~;;'.rn,,nt and d:s:1,>sal. Enforcement Po.licy recchred in rcspm:se V. Practical Impacts to the Comm:ssion's request for 10 CFR Puri 30 cvaluaUon of the exis!ing practice and Bypwduc! matrri,11. Gon:rnment Environnumta! Impact: Categorical proposed changes to it, it i~ apparent

• contrarts Ir,tergm*ernmcntal rela1io!1S, Exclusion that this rule is the prefer:*ed alternative Isotopes, Nt:.::lear materials. Penaltv, V\'ith respect to the amendments to 10 and the cost entailed in its pmmulgalion Radiation protection: Re;:>orting and CFR Parts 30. 40, 50. 60. 61. 70. 71, and and appl:cation is nec:essary and recordkecping requirt*m;,n!s.

72. the NRC.has determined that the rule ;ippropriate. The foregoing discussion is the type of actiop described in JO CFR I'art 40 constitutes the regulatory analysis for categorical exclusion 10 CFR 51.22(c)l3). this rule. Go\*ernment contrac!s, Hazardous The NRC has also determined that the materials-transportation, Nuclear amendments to 10 CFR Parts 2. 55. 110, . Regulatory Fle.xibi!fty Cemficat~_n materials. Penalty, R[:!porting and and 150 meet the eligibility criteria for rccordkeeping requi;-ements. Source the categorical exclusion described in 10 As*requiredby the Regulatory Flexibil/ty Act of 1980, 5 U.S.C. 605{b), material. Uranium.

• CPR 51.22(c)[l). Accordingly. neither an environmental impact statement nor an and corisistent with NRC's Size 10 CFR Part 50 environmental 11ssessment has been Standards published DPcembcr 9, 1985 (50 FR 50241), the Comi:1iss:on cei tifies Antitrust. Classifir:d bformation, Fire prepared in connection with the prevention. bcorporation by reference, issuance of the rule. that this rule does no! have a signifir.ant economic impact ppon a suhstantial ln\ergovernmental relations, Nuclear Paperwork Reduction Act Statement number of small entities. The rule, which power plants and re.:cto::s, Penalt\',

This rule adds a specific information will affect large and small licensees Radiation protection, Reactor siti~g collection requirement that_is subject to alike, merely codifies ,m existing crit.:ria, Reporiing and recordJ..eeping the Paperwork Reduction Act of 1980 (44 requirement, established through an requirements. U.S.C. 3501 et seq.). The information adjudicatory decision, that all 10 CFR Par! 55 collection requirements contained in information provided to the Commission these Regulations have been approved Manpower training programs. }.;uclear relating to licensed acti,,ifies or power plants and reactors, Penalty, by the Office of_M,magement and maintained pursuant to Commission Budget: 0MB approval Nos. 315CH)(J17 Reporting and recordkeeping requirements be complete arid accurate requirements. [Part 30): --0020 (Part 40): --0011 (Part 50J: in all material respects. In addition. the

-0018 (Part 55): -0127 (Part 60): --0135           rule will reduce the exisling b.irden on        10 CFR Part 60 (Part 61): ---0009 (Part 70); --0008 (Part 71):   licens*ees because the full aiscloslire
-01:i2 (Part 72): --0032 (Part 150).                                                                  High-level waste,-Nuclear power aspect of the cu.rrent judicially imposed       plants 1md reactors, Nuclear materials, Regulatory Analysis                                requirement has been modified to limit it       Penalty,_Reporting and racordkeeping The Commission's current                       to that information which the licensee         .requirements, \Vaste treatment and requirement for accuracy and                       itself has determined has a significant         dispo~al.

completeness of information provided lo implication for Hcensed acti\'ities. 10 CFR Part 61 the Commission is specified in the In the notice of proposep rulemaking, adjudicatory decision rendered with the Commission specifically requested Low-level waste, Nuclear ma1erials, respect to an enforcement action taken comment on the economic impact of this Penalty, Reporting and recordlceeping against Virginia Electric Power

• action on small entities. No comments requirements, \Vaste treatment and Company in 1976. The rule articulates, were received in respoitse to this .. disprJsal. **
• this requirement, \\;hich governs the day- request. 10 CFR Part 70 to-day interactions beh-.,een NRC personnel and licensees and applicants,, 'BacJ.fit Stoteme11t Hazardous materials-transportation, in a regulation.issued under the The rule codifies the existing Nuclear materials. Packaging and Commission's general authority to obHgations of applicants and licensees containers, Penalt\', Radiation establish instructions for the provision to provide.:J.nformation relating to protection, Reporting and recordkeeping

.of information and reports to the requirements, Scientific equipment, licensed activities which could have Security measures, Special nu.::Jcar Commission rather than by

• significant implications for those interpretation of the material false *material. * * '

statement provision of section 186 of the activities and to ensure that all information provided to the Commission 10 CFR Part 71 Atomic Energy Act 1n an adjudicatory decision. Codifying this requirement is or maintained pursuant to Commission Hazardous materials-transportation, preferable to continued reliance on the requirements is complete and accurate Nuclear materials, Packaging and 2-SC14

PART 2

• STATEMENTS OF CONSIDERATION containers, Penalty, Reporting and FOR FURTHER 1NFORMATION CONTACT: earlier and the reason for NRC not record~eepjng requirements.
• James Lieberman, Director. -Office of obtaining ii earlier. the significance of Enforcement. U.S. Nuclear Regulatory the new information. the extent of the JO CFR Pct 72 Commission. Washington, DC 20555, charge to the enforcement action

    ~lnnro,"er truinin:; pwgrams. N'uLlec1r   (301-492-0741).              .                warranted by the new information, the

,'.I?. tcria!s. Occupational safety and SUPPLEMENTARY INFORMATION: The resources necessary to reopen the case. heo1ltr. Rt!porling and recordkeeping Commission on September 23. 1987 the need for an increased sanction lo re11uircments, Security measures. Spent issued a revised Enforcement Policy (52 provide additional deterence for the fuel.

• FR 36215, September 28. 1987) in which impacted licensee and other similar Section V.F. addressed reopening closed licensees, whether the licensee JO CFR Part 1;0. enforcement actions. Section V.F. acquiesced to the original enforcemen1 Administrative practice and provided that if significant new action. whether remedial action is prucP.durc, Clttssiiied information. information is received which indicates needed to abate the effect of the original Export'. Import. bcorporation by that a previous enforcement sanction violation, whether the original violation reference. lnli:rgover-nmental relations. was incorrectly applied. the action could in fact occurred, and whether the

~uc!P.ar materials. l'\uclear power plants    be reopened. The policy also stated that      .licensee would be severe!~* or unjustly and reaclurs, Penalty. Reporting and          (1) reopening should occur only if             prejudiced by a reopening decision ret:ordi.e,!ping rPqui;-ements, SciPntific    remedial action is necessary to abate a        (apart from receh*ing a more severe equipment.                                    continued harm or if the new                   sanction) ..

information shows that the violation Recognizing that this is an issue which 10 CFR Part 150 was less serious than originally believed arises infrequently and that there are Hazardous materials-transpo;-talion. or that the violation did not-occur, and many considerations relevant to a ln!ergo, e'rnmental -relations. ')'.liuclear (2) normally actions would not be reopening decision on the basis of new materials, Penally, Reporting and reopened where the only change to the information, the Commission has recor-dkceping reqtrirements. Ser.urity prior action would be to increase the determined to modify.Section V.F. of the measures. Source material. Special severity level of a violation or to impose Enforcement Policy to emphasize that nuclear mnterial. or increase a civil penalty. the d~cision to reopen a case is to be While comments submitted in made on a case-by-case basis. For the reasons set out in the response to the September 28, 1987 preamb!P. end *under (he *authority of the List of Subjects in 10 CFR Part 2 Policy Statement were generally Atomic Energy Act of 1954, as amended, favorable to the wording*of section V.F.

• the Energy Reorganization Act of 1974. Administrative practice and the Commission has reconsidered this procedure, Antitrust, Byproduct as amended, and 5 U.S.C. 552 and 553, policy because it implies that an the !\RC is adopting the following material, Classified information, enforcement action would not normally *Environmental protection. Nuclear amendments to 10 CFR Parts 2. 30, 40. be reopened to increase e sanction even

50. 55, 60. 61, 70, 71, 72, llO and 150. materials, Nuclear power plants and if such action was warranted. For reactors, Penalty, Sex discrimination.

example, reopening may be warranted Source material. Special nuclear 53 FR 9429 to increase a sanction such as civil Published 3/23/88 material. Waste treatment and disposal. penalty on the basis of new information Effective 3/23/88 if the reason NRC did not have the For *the reasons set out in the information initially was because the preamble and under the authority of the 10CFR Part 2 licensee misled the NRC by providing Atomic Energy Act of 1954, as amended. Reconsideration of Enforcement false information or withholding the the Energy Reorganization Act of 1974. Policy Provision Involving Reopening information from the NRC. 1n such a as amended, and 5 U.S.C. 553, the NRC Closed Cases case, any prejudice to the licensee is the is ad9pting the following modification to result of its own action. Reopening its statement of Enforcement Policy in AGENCY: Nuclear Regulatory would be justified under the terms of the Appendix C to 10 CFR Part 2.

• Commission. current enforcement policy to impose ACTION: Policy statement: Modification. the appropriate sanction. Not to do so 53 FR 10360 Published 3/31/88 would reward a licensee's failure to Effective 4/29/88

SUMMARY

The'NRC is publishing a cooperate with the NRC, .which of minor modification to its Enforcement course cannot be tolerated. Revision to Ex Parte and Separation.of Policy to clarify its policy on reopening It should be noted that the issue here Functions Rules Applicable to Formal closed enforcement actions. This policy is reconsidering the existence of the Adjudicatory Proceedings is codified as Appendix C to 10 CFR original violation or the circumstances See Port O Statements of Consideration Part*2. and severity of the original violation. If DATES: Since this action concerns a the new information supports a different :53 FR 17688 general statement of policy, no prior violation, then reopening is not the issue Published 5/18/88 notice is required and, hence, this 'because a new and different Effective 5/18/88 modification to the Enforcement Policy enforcement action can be taken. . ..... 10 CFR Parts 2, a.and 20 is effective March 23, 1988. Comments

• Whether or not to reopen a completed*

may be submitted on or before 'May 23, enforcement action requires the exercise Minor Corrective Amendments 1988. of sound discretion and judgment. It is ADDRESSES: Send comments tri: difficult in the absence of 11 specific case AGENCY: Nuclear Regulatory Secretary, U.S. Nuclear Regulatory to establish what action'if any sbould be Commission. Commission, Washington, DC 20555. taken as a result of new information. ACTION: Final rule. AITN: Docketing and Service Branch. Considerations in making a Hand deliver comments to: Room 1121, determination to reopen a closed case

SUMMARY

The Nuclear Regulatory 1717 H Street NW~-Washington. DC might include: Whether the licensee Commission (NRCJ is amending its between 7:30 a.m. to 4:15 p.m. knew or should have known of the regulations to retum information that Copies of comments may be examined information at the time the original was inadvertently omitted when a fmal at the NRC Public Document, 1717 H action was closed, whether the doctrine rule was published in December 1987 Street NW., Washingt_on, DC. of res judi,:;ota applies, the opportunities and to make nonmencla ture changes available to learn of the information fuiJt reflect the 1987 NRC consolidation 2-S~15

PART 2

• STATEMENTS OF CONSIDERATION and were overlooked when a final rule For the reasons set out in the Materlel Safety and Safeguards, U.S.

was published in August 1987. These preamble and under the authority of the Nuclear Regulatory Commission, amendments are necessary to inform the Atomic Ener83( Act of 1954. as amended. Washington, DC 20555, telephone (301) public and NRC licensees of the the Entµ"gy Reorganization Act of 1974, 492-0360. . , . . corrections. as amended, and 5 U.S.C. 552 and 553 .. SUPPLEMENTARY INFORMATION: the NRC is adopting the following EFFECTIVE DATE: May 18, 1988. Back~und amendments to 10 CFR Parts 2, 9, and FOR*FURTHER INFORMATION CONTACT: 20. In 1974, a national goal was* Donnie H. Grimsley, Director, Division established that nuclear weapons-. of Rules and Records, Office of 53 FR 31651 usable material, whether in the licensed Administration and Resources Published 8/19/88 Effective 9/19/88 or license-exempt sector, should receive Management. U.S. Nucle~r Regulatory fully adequate-and eBBentially .* : Commission, Washington, DC 20555. Licensing Requirements for the comparable levels of protection. The .. Telephone: 301-492-7211. Independent Storage of Spent Nuclear objective of providing comparable SUPPLEMENTARY INFORMATION: On Fuel and High-Level Radioactive protection for SSNM has been reiterated . December 31. 1987 (52 FR 49350), the Waste 'in a number of subsequent * . *. *. NRC published a final rule revising its communications by the National* * . Freedom of Information Act regulations See Part 72 Statements of Consideration Security Council, Energy Research and

• in order to implement the Freedom of Development Administration (now Information Reform Act of 1988. One of 53FR43419 DOE), Department of Defenee, and NRC.

the amendatory instructions indicated Published 10/27/88 In consonance with this objective,

• that in 12.790, paragraphs [a)[7). Effective 10/27/88 reviews have been conducted (b)(l)(ii). and [d) were to be revised. For periodically by joint NRC/DOE review Relocation of NRC's Public Document teams. The findings from the most recent paragraph (d). the instruction should Room; Other Minor Nomenclature have read that the,.introductory text of Changes review (1988) indicated that DOE has paragraph (d) was revised in order to pieced increa11ed emphasis.on guard retain paragraphs (1) and (2) which were See Part 1 Statements of Consideration weaponry, training, ana tactical .

inadvertently dropped when the final response exercises and has upgraded rule was published. On August 21, 1987 53FR45447 some physical security measures.To (52 FR 31601), the NRC published a final Publlahed 11/10/88 maintain comparability with DOE as rule that amended several 10 CFR Parts well as to ~spend to recent NRC ,. Effective 12/12/88. security reviews, the NRC is amending*,.* to reflect the consolidation of the agency. Overlook~ we~ s~ver.aJ, places 10 CFR Parts 2, 70, and 73 its physical protection*regulations*for, *

• in the regulations where the licensed fuel facilities possessing.* ,

Safeguards Requirements for Fuel formula quantities of SSNM. These

• nomenclature changes should have L1:en Facllltles Possessing Formula made. These* amendments correct these facilities are: General Atomics, .La Jolla, Quantities of Strateg1c*speclal Nuclear California: Nuclear Fuel Services, Erwin, oversights. Material Tennessee; Babcock and Wilcox, Because these amendments deal with Lynchburg, Virginia; and United Nuclear agency practice and procedures. the AGENCY: Nuclear Regulatory Commission. Corporation, Montville, Connecticut notice and comment provisions.of the Although the !Fort St. Vrain reactor Administrative Procedure Act do not ACTION: Final rule.

(Colorado) uses high enriched uranium apply under 5 U.S.C. 553(b)(A). Good fuel, it is not subject to these upgrades BUMl!t1tRV: The Nuclear Regulatory cause exists to dispense with the usual Comnilssion (NRC) is amending its, . because of the extensive processing 30-day delay in the effective date. physical ,protection and security . required to yield weapons usable .. because these amendments are of a personnel pedol'DJance regulations and material and because of the weight of minor and administrative nature. its design basis threat for fuel facilities the fuel elements and their low. . Environmental Impact: Categorical possessing form~a. quantities ,of . . ,: , concentration of uranium. Pursuant to.10 Exclusion strategic special nuclear material , CFR 73.5, the Commission will initiate, (SSl,\JM} to require protection ~quivalent an exemption from the new

• The NRC has determined that this to that.in place at comparable * , . requirements for Fort St. Vrain. These final rule is the type of action described Department of Energy (DOE) fuel .
• amendments will provide.greater* * .

in categorical exclusion 10 CFR facilities. These changes have been assurance that security ,iystems and. 51.22[c)[2). Therefore, neither an prompted:by:a recent study that . . security force capabilities at these-environmental impact statement nor an compared NRC's security :requirements facilities are comparable to those used. environmental assessment has been for SSNM with DOE's recently upgraded by DOE. A remaining comparability prepared for this final rule: security system. The changes ar:e. also . issue relates to the-use of deadly force

• Paperwork Reduction Act Statement supported by findings from reviews of by licensee guards. This i&&ue is being ,
• safeguard.s event reports,-~egulatory addressed separately and is not covered This fmal rule contains no information Effectiveness Reviews, and in11pe*ction by these amendments.
• collection requirements and therefore is reports. The amendments provide . . On December 31, 1987, the NRC notsubject to the requirements of the greater assurance *that physical . published in the Federal Register (52 FR

-Paperwork Reduction Act of 1980 (44 protection measures at these fuel 49418) a proposed rule for upgrading . U.S.C. 3501 et seq.). facilities can protect against theft. safeguards requirements.for licensea List of Subjects in 10 CFR Part 2 EFFECTIVE DATE: December 12, 1988,

• fuel facilities possessing formula FOR FURTHER INFORMATION.CONTACT:.

quantities of SSNM. Thit upgrades called Administrative practice and Dr. Sandra Frattali, Division of for: (1) Security system performance procedure, Antitrust, BJ,product Regulatory Applications, Office of evaluation through tactical response material, Classified information. Nuclear Regulatory Research, U.S. exercises, (2) night firing qualification Environmental protection, Nuclear Nuclear Regulatory .Commission, for guards using all assigned weapons, . materials, Nuclear power plants.and Washington, DC 20555, telephone (301) (3) search of 100 percent of entering reactors. Penalty, Sex discrimination. 492-3773; or Kristina Z. Jamgochian,

• personnel and. packages (for explosives,.

Source material. Special nuclear Division of Safeguards and *

• firearms, and incendiary devices), (4) material, ~aste treatment and disposal. TransportatioJJ, P.mc;e of_ Nuclear posting of armed guards _at MAA control

                                                              ... 2-SC-16 ..

PART 2 STATEMENTS OF CONSIDERATION points, (5) provi.ding two separate

• force exercises rather than have the* establishment of the TRT could have physical personnel barriers around the licensee conduct a special annual unfavorable effects on the morale of protected area, and (6) revision of the
• exercise. A third respondent requested *some personnel as foreseen by the design basis threat at these fuel clarification of the number of exercises licensee. However, these negative facilities to*lnclude land vehicle use by and how much prior notice the NRC factors, if indeed they develop, are far adversaries attempting to commit theft needed before the NRC-observed annual less important than the need for a highly.

and require the implementation of exercise. effecti\le response capability. Moreover,, countermeaeu.ree to prevent forcible The NRC staff accepts* that a routine an elite group within the guard force * * .. vehicle entry into the protected area. of 13 exercises per year, seven of which

• need not be viewed negatively by the The comment period ended on March 30, are force-on-force (baaed on a three- remaining guard force if presented 1988. . . shift operation, one exercise per shift properly. All members of a security

                                                ' per quarter, plus one annual exercise)

• force could be eligible to qualify as TRT Summary of Public Comment can, over time, become less effective membera (as opposed to being singled
• Letters of comment were received due to their frequent repetition and out by the licensee). Ideally, if all*
• from six respondents: four from fuel reduced learning curve. Therefore, this members of the security force qualify*as facility licensees, one from DOE, and final rule is being modified to require a TRT members, they can be rotated one from a manufacturer of fences who licensee, during the first year of rule through the schedule on an equal basis, submitted specifications on a type of implementation, to conduct a total of 12 thereby alleviating the concern of security fence but did not comment on exercises (one exercise per quarter per* creating a separate elitist group and the:rule. itself. Copies of-comment letters shift), half of which are. to be force-on- making shift scheduling easier.

are available for public inspection and force. The NRC will observe one of the The licensee was also concerned that copying for a fee at the NRC Public . quarterly force-on-force exercises and* a distinctive item of uniform could single Document Room at 2120 J. Street-NW,, will not require an additional annual out TRT members to an adversary. Tho Low~r.Level, WaJJhington, DC. exercise. Thie reduces the number of NRC accepts this as a valid concern.

• A summary of tl)e public comments exercises during the first year of However, the distinctive item could be
• and their resolution follows. The compliance to 12-for a three-shift email, such as a pin or badge, and not *.

comments are:organized. in the foll(,wing operation. During the second year and noticeable at a distance.. categories: .* * *. . ..

• each year* thereafter, llcenaeea will be Under the proposed amendment, TRT

1. Performance Evaluation Through required to conduct nine exercises per . members and guards who are eligible to Tactical Response Exercises and year (one exercise per shift every four be TRT members would have to .

Tacti~alReeponse Teams. (TRT); months), one-third of which will be successfully complete training in

2. Guard Force Weaponry; force-on-force, with the NRC observing response tactics. The training would be

3. Personnel, Package, and Material one of the force-on-force exercises. The in addition to the individual training Entrance Search;

• NRC is to be notified 60 days prior to an currently required in Appendix- B to Part

4. Protected Area Physical Barriers. NRC-observed, force-on-force exercise 73. No specific criteria or standards for*

so that possible scheduling conflicts can the training in response tactics were

1. Performance Evaluation Through be resolved. provided with the proposed rule. A Tactical Response ~ercises end Thie final ruli;i requires licensees to *.

• licensee respondent suggested that the Tactical Response Teams establish a designated TRT and replaces NRC should establish minimum Under the proposed rule, effected the current general requirement for en standards but that the standards or licensees would,conduct tactical
• armed response force. Creation of TRT'a criteria. should be adaptable to site-response exercises for each guard force is expected to provide more highly specific situations.
• shift on a quarterly basis. The exercises motivated, professional, and effective The NRC agrees with this suggestion.

would demonstrate the guard"force state** organizations to respond to end prevent A Tactical Training Manual has been . of readiness and test the effectivenesa of* forceful attempts to remove SSNM from developed for licensee use. The material delay mechanisms, alarm and *

• licensee sites. This-rule also requires *
• can be adapted and used under a
• communication systems, response times,* that TRT members have individually **.
• variety of conditions and circumstances.

deployment of. response forces, firing assigned, 'Jpgraded weaponry and an* The manual provides viable approaches skills (simulated), and tactical

• item of unifol'IJ' distinctive and *different for licensees to use in structuring site- .

maneuvers. The results would be used from that of the guard force (e.g., cap, specific tactical response training to determine whether additional training armband, etc.).* programs. or security system improvements are One licensee objected to the NRC 2. Guard Force Weaponry needed. The exercises are not intended replacing the term "armed response* to*.be *viewed in te~s of "p~sb"* or. '!fail." personnel" with Tactical Response Under the proposed rule, ell TRT The quarterly exercises could be of Team". This licensee believed that it members would be armed with 9mm short duration, would have at least one , should not be restricted in,selection of a

• semiautomatic pistols. Many major city exercise per guard shift, and would title, since the title/ designation of its law enforcement agencies; SWAT .

cumulatively represent the various response force is changed periodically teams, and the U.S. military are shifting lighting conditions during a 24-hour day. for security purposes. The NRC does not from revolvers to semiautomatic pistols* Each year, at least two of the quarterly object to a licensee using different code . in order to take advantage of sustained exercises for each* shift would include names or changing code names for its

• fire* capability. These police upgrades force-on-force scenarios. Also proposed TRT. When amending the security plan, .* respond to increased encounters with .

was an additional, more extensive however, a licensee shall'use*the term*.,_. adversaries using more sophisticated annual exercise to be observed by NRC "Tactical Response Team", .

• weapons. After conducting a literature representatives that would include This licensee also objected to the . * *. review and discussing with various force-on-force scenarios. proposed requirement that TRT
• agencies their rationale for converting One letter of comment stated that members have a distinctive item of from revolvers to semiautomatic pistols, quarterly exercises are more frequent* *. uniform. It was the licensee's experience the NRC included in the proposed
• than necessary and requested a
• that fostering a spirit of elitism among a amendments a requirement for TRT reduction in the number of exercises to small group of individuals within the **
• members only (not other security force one per shift every four months. Another security force often only serves to create personnel) to be armed with 9mm
• respondent requested that ther NRC a schism and affects morale . semiaut~~~_tic pi_5.to!s.!

observe one of the quarterly force-on- unfavorably. The NRC accepte*that the. 2-SC-17

PART 2 STATEMENTS OF CONSIDERATION The Commission explicitly solicited not immediately stop a vehicle and if successful containment of the public comment on the requirement for that was NRC's intent, then nothing less adversaries. equipping* TRT members with

• than a .50 caliber heavy machine gun 3. Personnel, Package, and Material semiautomatic pistols and on whether would be needed. A second licensee Entrance Search the final choice of weapons should be requested an *exemption from this
• requirement due to the configuration Under the proposed amendments, left to the.licensee. Only one response search for explosives, firearms, and (from a licensee) was received. It stated and limited size of its facility. This licensee was concerned about various
• incendiary devices would be required of that ihe choice of weapon and caliber of 100 percent of entering personnel and weapon should be left to the individual problems due to the proximity of high population areas and public reaction packages except for Federal, State, and licensee. This licensee believes that the local law enforcement personnel on NRC if justifying the requirement for a and, therefore, believed it unnecessary and dangerous to arm TRT members official duty. Also, under the proposed 9mm semiautomatic pistol on the fau~ty amendment1J, present exemptions would conclusions (1) that greater firepower with large caliber rifles.

                                              *The requirement that one TRT            continue for those delivery and (increased availability of rounds)                                                      inspection activities specifically equates with an enhanced ability to hit     member carry a rifle of atleast .30 caliber or 7.62mm is retained in the final  designated by the licensee *and the target, and (Z) that the 9mm's larger                                               approved by the Commission to be magazine (up to 15 rounds) and more         rulemaking. The Commission believes rapid action allows for faster dlschurge    that additional capability should be        carried out*within material-access, vital, of rounds and increased hit probability. available to defend against adversaries     or protected areas for reasons of safety,.*

The licensee also* stated that certain in a vehicle attempting to penetrate a security, or operational necessity. types of revolvers could be equally protected area boundary. The intent of One licen1Jee respondent justified and that after an in-depth this requirement is not to stop the *. recommended that "Q" cleared armed evaluation of weapons and ammunition vehicle immediately, but to disable security officers should be included in currently available, each licensee could adversaries inside the vehicle. Any site- the exemptiion based on the fact that ~t best determine whjch meet the . specific considerations that licensees could see no benefit in performing a requirements of the site. may have once this final rulemaking is prohibited article search on a security effective should be dealt with on an officer overtly carrying a*weapon. In The NRC's rationale for the response, it is pointed out that of requirement is based on the advantages individual basis through appropriate procedures. concern to the NRC is the iBSue of an of the weapon. The 9mm has less.recoil Under the proposed rule, TRT . insider attempting to introduce not only than revolvers currently used, making it members on duty would be required to firearms, but also explosives and easier to control, and thereby allowing carry their individually assigned incendiary devices inside a protected increased accuracy: In light of the shotgun or semiautomatic rifle, with one area. Under this criterion, although a growing worldwide trend among the member carrying the .30 caliber* or security officer displays an-authorized criminal element toward the adoption of 7.62mm W!!ap~n, Two _license_e handgun, searching the officer for sophisticated automatic and respondents believed that the weapons explosives, incendiary devices, and semiautomatic weaponry, the 9mm need not be carried but should be unauthorized weapons is still necessary provides added firepower considered readily available i.e., kept a strategic before the officer enters a protected . necessary while maintaining the locations throughout the facility. Both area. Accordingly, the proposed search* necessary- high degree of reliability and respondents noted that there were times requirement is retained unchanged in accuracy. Additionally, the . when carrying shoulder fired weapons the final rul,e. semiautomatic pistol is easier to load in was not practical and were concerned the dark, in the cold, or when one is 4. Protected Area Physical Barriers about the safety hazard involved should under stress. In the event adversaries the weapon have to be laid down (i.e., Under the proposed rule, the armed with semiautomatic weapons lunch, restrooms). Additional concerns perimeter of the protected area of a fuel attack a facility where TRT members were that the weapons may be facility poslllessing formula quantities of are equipped with standard sixsround functionally abused during the TRT SSNM would be required to have a revolvers, the TRT responders would members normal activities of climbing double physical personnel barrier. The need to reload ammunition long before ladders and maneuvering through close two barriero would be constructed and the opponents would. During reloading, areas, or coritaminated should the installed primarily to ensure the ability TRT responders could be exposed to weapon have to be laid down while to assess an attempted penetration of deadly fire without defense. The ability performing searches in material access the protected area perimeter at the time to sustain fire is of major importance. areas. of the occurrence and secondarily to This final rule requires that_ all TRT The requirement for TRT members to delay attempts of unauthorized exit from members be equipped with 9mm carry their assigned shoulder fired. the protected area. The present intrusion semiautomatic pistols, with qualification weapons while on duty is included in detection systems required by NRC and annual requalification in both day this final rule. The requirement "to would be located between tbe11e two and night firing courses. The choice of carry" is not to be interpreted to mean barriers. model and manufacturer is left to the "hand carry" but to be on the person as licensee. In the sol13 letter of comment regarding in a shoulder sling. The normal duties of the proposed requirement, DOE The proposed rule required each TRT a TRT member should permit"immediate member be armed with a shoulder fired recommended that the proposed

• response and, therefore, should not change11 be deferred until a performance weapon, and at least one TRT member include routine searches at material carry a .30 caliber or 7.62mm rifle. The analysis of the existing security system acceBB areas. Likewise, while on lunch has been completed and the need for requirement for a heavi!!r rifle would break, the TRT member should be provide additional effectiveness against change has been determined. In its
• relieved by another TRT-qualified detailed coimnenta, DOE stated that two, the use of land vehicles, which is now security officer in order to avoid the included in the design basis threat. perimeter fEinces are not a DOE need to lay the weapon down. The main requirement and that double fences, Letters of comment on this issue were rationale for TRT members to carry their received from two licensees. One where they have been installed, are assigned weapons is to permit
• installed on the basis of the overall licensee did not agree with the large immediate response. In the*event of an-caliber weapon requirement and performance of all security systems at adversary attack the timely delay these sites. DOE pointed out that only recommended that this option be left up caused by retrieving weapons from to the licensee. The licensee asserted very limited! adversary delay time is strategically located repositories coulc:t provided by a perimeter fence, and the that a rifle of .30 caliber or 7.62mm will have an adverse impact on the
• potential of a second perimeter barrier 2-SC-18

PART 2 STATEMENTS OF CONSIDERATION namely: (1} Search of 100 percent of possession of formula quantities of is realized only if designed to enhance SSNM are considered tu have a minor assessment. Relative to the intrusion personnel and packages admitted to the detection system, DOE proposed* protected area, (2) posting of armed impact on the environment and support revising the requirment to call for guards at MAA control points, and (3) a finding that the final rule involves no night firing qualification for guards using significant environmental impact. The

• optimum uee of the present systems and environmental assessment and finding leaving the.syslem.P in their current all assigned weapons. Under the new amendments, each licensee will modify ofno significant impact on which this locations until an evaluatio*n of the its physical security plan to show how determination is based are available for usefulness of these present systems inspection at the NRC Public Document through a performance exercise is made. all of the new requirements would be carried out and will submit the plan to
• Room, 2120 L Street NW .. Lower Level, The NRC recognizes that DOE has not Washington, DC 20555. Single copies of.

established a generic requirement for the NRC.for approval within 180 days after the effective date of these the environmental assessment and two perimeter fences. However, all DOE finding of no significant impact are facilities reviewed by the NRC/DOE amendments. The license conditions listed earlier will be withdrawn at the availapl!!_ frr.>m Dr. Sandra D. Frattali; Comparability Review Group do have Office of Nuclear Regulatory Research, double perimeter barriers. The NRC time that the corresponding commitments in the approved plan U.S. Nuclear Regulatory Commission believes that the performance standards Washington, DC 20555, telephone (3oi) achieved at these DOE facilities, which become effective. The licensee will carry out the various additional new 492-3773. . are met In part by double fences, should be provided at comparable NRC- commitments not already implemented Paperwork Reduction Act Statement licensed facilities. by license conditions in the approved plan commencing at various dates, This rule amends information In guidance to affected licensees NRC collection requirements that are subject makes clear that the intrusion detection ranging from 30 to 365 daya after NRC approval of the plan. to the Paperwork Reduction Act of 1980 system and the iruier barrier are to be (44 U.S.C. 3501 et seq.). These positioned and constructed to assure Finding of No Significant Environmental requirements were approved by the . adequate delay aft!!~ an intruder triggers Impact

• Office of Management and Budget under an alarm. The delay'must be sufficient The Commission has d~termined approval n\lmber 3150-0002.

to permit a defender to determine under the National Environmental Policy Public reporting burden for this positively whether the triggering was Act of 1969, as amended, and the collection of information is estimated to due to an intruder. The interrelationship Commission's regulations in Subpart A avera~e 2.2 hours per response, of the perimeter intrusion detection of 10 CFR Part 51, that this rule, if . Including the time for reviewing system and the double barriers is so adopted, would not be a major Federal instructions, searching existing data close that it is essential to treat action significantly affecting the quality sources, gathering and maintaining the improvements to them si?J1ultaneously. of the human environment and, data needed, and completing and Therefore, it is necessary for the overall therefore. an environmental impact . reviewing the collection of information. performance of the protection system statement la not required. These Send comments regarding this burden that the double barrier system and* amendments affect neither the safety of estimate or any other aspect of this intrusion detection system locations operation nor the routine of, or exposure collection of information, including (and possible reinstallation) be designed to, radioactivity from fuel facilities suggestions for reducing this burden, to in concert. For these reasons, the barrier possessing formula quantities of SSNM. requirement is retained in.the fmal rule.* The Records and Reports Management Their only intent is to provide greater Branch, Mail Stop P-530, Division of Other Changes: Weapons Qualification protection against the revised design Information Support Services, IRM, These amendments require night firing _basis threat and thus reduce the risks of Office of Administration and Resources qualification and annual requalification theft of SSNM from these facilities. Of Management. U.S. Nuclear Regulatory by the security force and TRT members the six measures proposed, three have- Commission, Washington, DC 20555, with all weapons assigned to them. This no identifiable environmental impact; and to the Office of Information and revises the current requirement for night namely, initiation of security system Regulatory Affairs, Office of familiarization firing only. Specified performance evaluations t~ough Management and Budget, Washington, courses (included in Appendix H) for tactical team exercises, night firing DC 20503, qualification and annual requalification qualification of guards using all assigned weapons, and posting of armed guards Regulatory Analysis with revolvers, shotguns, and rifles are added as requirements in this final et MAA control points. The"100 percent. The Commission has prepared a rulemaking. Licensees may develop and search of entering personnel and regulatory analysis on this rule. The sumibt for NRC approval a qualification packages -would require installation of analysis examines the costs and additional walk-through detection benefits of the alternatives considered course for day firing for 9mm equipment which likely would require semiautomatic pistols which TRT by the Commission. The analysis is members must now carry. Additionally, construction activities to expand or available for inspection in the NRC licensees may also substitute shoulder modify the existing building in which Public Document Room, 2120 L Street firing for hip firing for the day shotgun this equipment Is located. The NW... Lower Level, Washington, DC requirement regarding protected area 20555. Single copies of the analysis may qualification course contained in personnel barriers would necessitate Appendix B to Part 73 an<;I. reflect this be obtained from Dr. Sandra D. Frattali change in their amended security plan. construction, on the licensee's property, Office of Nuclear Regulatory Research,' Licensees are required to retain the of a second barrier. Finally, the U.S. Nuclear Regulatory Commission installation of structures to prevent Washington, DC 20555, telephone [30i) documentation of each qualification and requalification es a record for three forcible vehicle entry would likely 492--3773. require the deployment of vehicle years after each qualification and barriers which would be installed on the Regulatory Flexibility Certification requalification. Microfilm documents are licensee's property at or near the acceptable. As required by the Regulatory protected area boundary at points Implementation accessible to vehicles. These Flexibility Act of 1980, 5 U.S.C. 605[b), construction activities at four current the Commission hereby certifies that Currently, under ,conditions of license, this rule does not have a significant licensees carry out certain of the licensee sites and at any sites of future fuel facility licensees who require -~~~no_!Jlic Jmpa~t!Jpon a substantial measures called'for in the amendments, 2-SC-19

PART 2 STATEMENTS OF CONSIDERATION number of small entities. The rule AGENCY: Nuclear Regulatory ACTION: Final rule. affects four licensees who operate fuel Commission. facilities possessing formula quantities

SUMMARY

'l'his final rule makes minor ACTION: Final rule: correcti,qq.

of SSNM under 10 CFR Parts 70 and 73. changes in the Commission's rules of They are GA Technologies Inc., Le Jolla,

SUMMARY

The Nuclear Regulatory practice by revising its regulation that California: Nuclear Fuel Services, Erwin, Commission is amending a final rule specifies when a license, permit, or Tennessee: Babcock & Wilcox, that was published on November 10, amendment can be issued following an Lynchburg, Virginia: and United Nuclear 1988, to correct the numerical initial adjudicatory dec:ision resolving Corporation, Uncasville, Connecticut. designation of one footnote and to all issues before the presiding officer in The companies that own these plants indicate the removal of a second favor of authorizing the licensing action.

are dominant in their service areas and footnote. These corrections are J3ec~uee of recent judicial decisions do not fall within the scope of the necessitated by a separate rulemaking, . affirming the validity o( the definition of small entities set forth in published on October 13, 1988 (53 FR' Commission's existing procedures section 605(b) of the Regulatory 40019), that revised many footnotes in relating to the "immediate Flexibility Act of 1960 or within 1he the p~licy statem1mt. _These changes effectiveness" of a presiding offict.'ls definition of Small Business size were inadvertently overlooked when the decision, the Commission has decided to standards set out in regulations iBBued November rule was published. This retain the existing rule, with one by the Small Business Administration at notice corrects that oversight. exception. *rhe final rule, as proposed, 13 CFR Part 121. EFFECTIVE DATE: November 25, 1988; deletes outdated language in the existing regulation emanating from Three Mile Backfit Analysis l'OR FURTHER INFORMATION CONTACT:; Island-related regulatory policies upon The NRC has determined that the Michael T. Lesar, Acting Chief, Rules which action has now been completed. backfit rule, 10 CFR 50.109, does not Review Section, Regulatory Publications This action is necessary to clarify apply to this final rule and. 1herefore, :a Branch, Division of Freedom of existing procedures. backfit analysis is not required since Information and Publications Services, EFFECTIVE DATE: March 27, 1969. these amendments do not involve any. Office of Administration and Resources FOR FURTHER INFORMATION CONTACT: provisions which *would impose backfits Management, U.S. Nuclear Regulatory. Commission, Washington, DC 20655,. Paul Bollwerk. Senior Attorney, Office es defmed in 10 CFR 5D,109(a)(1), of the General CouJ1Bel, U.S. Nuclear. Telephone: 301-492-7758. List of Subjects Regulatory !Commission, Washington, SUPPLEMENTARY INFORMATION: DC 20555, Telepho11e: (301) 492-1634, 10CFRPart2 In the November 10, 1988, edition of 8UPPLEMEN11'ARY INFORMATION: Administrative practice and the Federal Register, on page 45451, On February 4, 1987, the Comniis*sion

• procedure, Antitrust, Byproduct make the following corrections:* published in the FederalRegister (52 FR material, Classified information, 3442-3447) proposed amendments to its Environmental protection, Nuclear PART 2-(AMENDED) Rules of Practice (10 CFR Part 2) that materials, Nuclear power plants and Appendix C--(Amem:lec;l) would revi11e its existing rule governing reactors, Penalty, Sex discrimination, when a presiding officer's decision in
• Source material, Special nuclear 1. In column 2, emendatory instruction favor of authorizing the iBSuance or material, Waste treatment and disposal. number 3, the number of the footnote amendment of a license or permit will reference and the actual*footnote should; become "effective" so as to permit the 10 CFR Part 70 be "13"*rather than "11". NRC staff to take the .licensing action. In*

Hazardous materials-transportation, 2. In column 2; amendatory instruction addition to clarifying the existing rule Nuclear materials, Packaging and number 4 should be removed along with regarding the "effectiveness" of containers, Penalty, Radiation the footnote, as this footnote was earlier ~ecisions on nuclear power plant protection, Reporting and recordkeeping removed In the October 1988 final' * *. ~onstructlon permits and operating_ : .. .

• requirements, Scientific equipment, rulemaking document. *.
• bcenees,*the proposed rule would h!kve'**
• Security measures, Special nuclear
• Dated at Bethesda, Maryland;.tbla 21st day n!moved language In the rule that * * **, .,
• material. of November 1988. * *
• provided gulda.nce to the Atomic Safety:; : .

10 CFR Part 73 For the Nuclear Regulatory Commission. . and Licensing Board and the .Atomic *: : Donnie H. Grimsley, Safety and Licensing Appeal Board on

• Hazardous materials-transportation, Director, Division of Freedom oflnfo_rrnation Incorporation by reference, Nuclear
• ho*w to*factor into the adjudicatory: .* * ,

and Publications Services, Office of _process the various regulatory changes* materials, Nuclear power plants and Administration and Resolll'fleB Management. reactors, Penalty, Reporting and

• resulting.from the 1979 accident at Three recordkeeping requirements, *Security 53 FRS2993 Mile Island. Unit 2 (TMl-2).
• measures. Published 12/30/88 In two recent United States Court of.. .

Effective 12/30/88 Appeals casas, one decided not long *

• For the reasons set out in the before and one decided not long after preamble and under the authority of the Reorganization of Functions Within the propose~ rule was published, the Atomic Energy Act of 1954, as amended, the Office of Administration and provisions o[ the Commission's existing the Energy Recorganization Act of 1974, Resources Management and Minor rule relating to effectiveness reviews for as amended, and 5 U.S.C. 552 end 553. Correcti!J8 Amendments reactor operating licenses was upheld the NRC is adopting the following against arguments that it illegally amendments to 10 CFR Parts 2, 70, and See Pan 1 Statements of Consideration allowed license issuance prior to the .

73, completion of the agency's appellate 54 FR7756 53FR47662 Published 2/23/89 process and that it'violated the ** '* Publlahed 11/25/88 Effective 3/27/89 Administrative Procedure Act's (APA) Effective 11 /25/88 procedural protections for formal

• 10CFR Part2 adjudicatory hearings. Eddleman v.

10 CFR Part 2

• NRC. 825 F.2d 46 (4th Cir.1987): .
• Issuance or Amendment of Power Oystershell Alliance v; NRC, 800 F.2d
• Safeguards Requirements for Fuel Reactor License or Permit Following ..

Facilities Possessing.formula 1201 (D.C. Cir. 1986) (per curiam). In Initial Decision. Oystershell Alliance the United States Quantities of Strategic Special Nuclear Material; Correction AGENCY: Nuclear Regulatory Court of Appeals for the District of C.ommission. Columbia Circuit held that the 2-SC-20

PART 2 STATEMENTS OF CONSIDERATION Ccrnmission's effectiveness review nuclear powerstation over the timing of constitutes the regulatory analysi~ for* procedure allowing for the issuance of the installation of a control room safety

• the final rule.

an operating license before 'the parameters*display system (CRSPDS). Regulatory Flexibility Certification completion of the iutemal agency Because, as the Appeal Board noted,

• appellate process was lawful. BOO F.2d the NURE~737 CRSPDS requirement . In accordance with the Regulatory in question provided for staff discretion Flexibility Act, 5 U.S.C. 605lb), the NRC at'l206--07, In Eddleman, the Untted certifies that this final rule does not States Court of Appeals for the Fourth in establishing the timing of installation, see Public Service Co. of New have a significant economic impact upon Circuit held that this procedure could be a substantial number of small entities.

conducted without providing the Hampshire (Seabrook Station, Units 1 &: 2), ALAB-875, 26 NRC 251, 265 & n.52. Entities seeking reactor construction procedural rights and protections permits or operating licenses that would afforded by the APA for formal (1987), this situation hardly provides.a compelling example that TMl-relaled be subject to the TMl-2 related adjudicatory hearings. 825 F.2d at 48. provisions that are being deleted from requirements are not given the same As a result of these two cases priority as other regulations. Moreover, the existing immediate effectiveness upholding its present effectiveness

• this point is essentially irrelevant to the rule would not fall within the definition procedures, the Commission has focal issue of whether all applicable of small businesses*found in section 34 decided not to revise those procedures NUREG--0737 requirements have been of the Small Business Act, 15 U.S.C. 632,.

as proposed, with one exception. That incorporated into the agency's the Small Business Act Size Standards exception is the revision to remove the regulations and orders. The Commission set out in regulations issued by the TMI-related portions of I 2.764, can only reiterate that this indeed is the Small Business Administration at 13 *. specifically all or portions of.paragraphs. case and, accordingly, it has determined CFR Part 121, or the NRC's size (e)(l)(ii),' (e)(2)(ii), and (f)(1}(11). * . that these TMI..-2 related provisions of standards published December 9, 1985

• Of the fourteen comments on the * § 2.764 .ere no long(lr necessary. . (50 FR 50241). Further, intervenors who proposed rule, oniy three µiade* specific Nonetheless, to ensure* there is no probably would fall within the pertinent mention of this proposal to deleteTMl-2
• uncertainty over the litigation of TMI-Z Small Business Act definition will not related language. Two of the comments., related issues, as was indicated in the encounter.a significant economic impact one filed by a nuclear utility and the Statement. of Considerations for the from the final rule. The previous other by a law finn which represents proposed nile, the Commission is issuing incorporation in NRC regulations and nuclear utilities, supported deletion of a policy statement.that sets forth its orders of all applicable TMI action items the provisions for the.reasons stated in updated poliqy o~ litigation of TMl-2 and the forthcoming publication of a the Statement of.Considerations ** related issues. This policy stl!tement is Commission policy statement on supportj.ng .the proposed rule. namely published elsewhere in th.is issue of the. litigation of TMI-rclated issues are that all applicable TMI-Z action items, Federal Register. effective substitutes for the existing which are embodied in NUREG--0737, TMI-2 related provisions of the "Clarification ofTMI Action Plan Environmental Impact: Categorical immediate effective rule being deleted Requirements," *, are now covered by Exclusion
• by this final rule.
• regulatory changes with which licensees The NRC has detennined that this Backfit Analysis must comply. The other comment, filed by two public interest groups. opposed final rule is the type of action described in categorical exclusion 10 CFR This final rule does not.modify or add deletion of these provisions on the *: .... ' 51.22(c)(1). Therefore, neither 1:m to systems, structure, components, or srouud that allTMf"hissdns learned" *
• environmental impact statement nor an design of a facility; the design approval

.have. not been incorporated adequately'.. environmental.assessment has been or manufacturing license for a nuclear into the Commission's regulations. * *

• prepared for this final regulation. reactor facility; or. the procedures or

' .in the Statem~nt pf ConsideraUonll .*               Paperwork Reduction Review organization required .to design,
*supporting the propos~d'rule. the'                 .                                                 c~nstruct, or operate a facility, Commission declared that "[t]he NRC

• This final rule contains no new or Accordingly, no backflt analysis staff has advised the CommiHion that amended information collection pursuant to 10 CFR 50.109(c) is required ell applicable NURE~737 action items requirements end therefore 'is not for this final rule.

are covered by regulatory changes and subject to the requirements .of the List of Subjects in 10 CFR Part 2 that a license applicant's compliance Paperwork Reduction Act of 1980.(44 with existing regulations is a sufficient U.S.C. 3501 et seq.). Administrative practice and response to all applicable TMl-2 procedure, Antitrust, Byproduct accident 'lessons learned.' (52 FR 3444). Regulatory Analysis material, Classified infonnation, Accompanying this statement were As e result of recent judicial decisions Environmental protection, Nuclear . references to a number of specific* affirming the legality of the materials, Nuclear power plants and regulatory changes that are examples of Commission's existing rule goveming reactors, Penalty, Sex discrimination, the incorporation of those action items the "immediate effectiveness" of initial Source material, Special nuclear into the NRC's rules. Id. In opposing this decisions in reactor operating license material, Waste treatment and disposal. revision, the commente~. provide only proceedings, the Commission has For the reasons set out in the the unsupported observation .that this. is decided not to take further action to preamble and under the authority of the not so. They then go on to a11sert that revise the existing rule's procedures on Atomic Energy Act of 1954, as amended,.

 "NUREG-0737 requirements are not                      effectiveness reviews. However,*               the Energy Reorganization Act of 1974, given the same priority .as other                     retention of the TMl-2 related*                 as amended, and 5 U.S.C. 552 and 553, regulations," citing a dispute in the                 provisions of the current immediate             the NRC is adopting the following licensing proceeding for the Seabrook                 effectiveness rule is unnecessary and           amendments to 10 CFR Part 2: *

• would be misleading to participants in.

1 Copies of NUREG--0'137 may be purchased fn,m NRC licensing proceedings. Those the Superintendent of Documents, U.S. Government provisions are, therefore, l>eing deleted. Printing Office, P.O. Box 37082, WaRhin11ton, DC 20013-7082. Coples are nlso available from the

• The final rule thus constitutes the Notional Technical Information Service, 5285 Port preferred alternative and the cost Royal Road, Sprln11field. VA 22161. A copy is involved in its promulgation and uvallahl~ for public in~pection end/or copying 111 1hr. NRC Pu~lic Document Room, 2120 L Slroet NW:,

application is necessary and WashinRIOn, DC. appropriate. The foregoing discussion 2-SC-21

PART 2 STATEMENTS OF CONSIDERATION affected by a nuclear materials licensing comments and the Commission's proceeding. Kerr-McGee Corp. (West. responses to those comments follows. Chicago Rate Earths Facility), CLl-82-2, 15 NRC 232 (1982), aff'd sub nom. City of A. General Comments West Chicago v. NRC, 701 F.2d 632 (7th 1. Hearing Procedures Are Too Formal

• Cir. 1983) [both hereinafter referred to as West Chicago]. On July 24, 1987, the
• Several commenters who ere date for submitting comments on the materials licensees or who represent

.54 FR8269 proposed rule was extended to August materials licensees expressed concern Published 2/28/89 20, 1987 (52 FR 27821). that the proposed informal procedures Effective 3/30/89 were unnecessary or too formal. One As proposed, the informal hearing procedures differ substantially from the commenter suggiisted that, given the 10 CFR Part 2 smaU number of materials lkcnsing existing regulations in 10 CFR Part 2, Subpart G that govern the condµct of hearing requests received by the Informal Hearing Procedures for Commission over the past several years. NRC formal, trial-type adjudications. Materials Ucenslng Adjudications the Commission need only continue its Specifically, the presiding officer is to 1.GENCY: Nuclear Regulatory receive and to make his.or her present practice. That practice, which Commission. determination based solely upon a has been in effect since the first "hearing file" compiled by the NRC informal hearing in the 1982 West ACTION: Final rule. staff, which need not be a party to the Chicago proceeding, is to issue an order

SUMMARY

The Nuclear Regulatory proceeding, and written presentations in response to each ~aterials licensing Commission is amending its regulations by the parties. There would be no hearing request that establishes the to provide rules of procedure for the discovery. Only if the presiding officer procedures governing that informal conduct of infortnal adjudicatory found that the written presentations hearing. 'The Commission disagrees. Its hearings in materials licensing were insufficient to create an adequate practice of issuing inovidual orders has proceedings. The Atomic Energy Act of record would oral presentations be allowed the agency to gain valuable 19&1 requires that the NRC afford an permitted. Any examination of those practical experience in conducting interested person, upon request, a making oral presentations would be informal adjudications, experience thal "hearing," in any proceeding for the limited strictly by the presiding officer.. is reflected in the provisions of this final granting, suspending, revoking, or The type of cross-examination by the' rule. The small number of hearing

• amending of an NRC license, including a parties that generally is pennitted in requests explains in part the delay in the license*tnvolving source, byproduct, and formal adjudications would be ' CommiBBion's promulgation of this final special nuclear materials. The prohibited. Essentially, the informal rule in that ii has taken longer to gain Commission previously has determined hearing is designed to elicit information the relevant experience that has guided that the "hearing" provided for a and resolve issues primarily through it in formulating appropriate procedures.

materials licensing proceeding need not. inquiry by the presiding officer rather However, it ultimately is not a sufficient encompass all the procedures in NRC than through an adversarial

• counterweight to the prudent regulations that currently govern more confrontation between the parties. As a observation of the United States Court formal adjudic,tions for the licensing of consequence, the presiding officer has of Appeals for the Seventh Circuit In Its teactor facilities. Rather, the broad discretion in controlling the West Chicago decision, 701 F.2d at 645, Commission has de,tennined that, in
• manner In which the issues raised by that the interests of all concerned in the most instances, en informal hearing with the parties are to be explored. *hearing process are better served if the an opportunity to present written view:s agency formulates regulations that make is sufficient to fulfill this requirement. II. Comments and Commission it clear what procedures will apply to all The final rule prescribes the procedures Responses informal proceedings. This is that would govern these informal The Commission received twelve particularly so given the large number of proceedings. letters of comment representing a broad materials licensing actions the*

EFFECTIVE DATE: March 30, 1989. spectrum of interested persons. Commission takes each year that FOR FURTHE~ INFORMATION CONTACT: Commenters Included private potentially ere subject to hearing Paul Bollwerk, Senior Attorney, Office corporations that hold NRC materials requests. of the General Counsel, U.S. Nuclear licenses, a trade association This commenter also asserted that the Regulatory Commission, Washington, representing companies holding fl.'RC proposed informal procedures should DC 20555, Telephone: (301) 492-1634. materials licenses, private counsel that not be adopted because the adjudicatory SUPPLEMENTARY INFORMATION: represent NRC reactor and materials format is not suited to the resolution of licensees, public interest groups, a local technical questions and, in any vent, the I. Background governmental entity, and an individual existence of two sets of procedures, one On May 29, 1987 (52 FR 20089-20096), member of the public. Seven of the for informal proceedings and one for the Nuclear Regulatory Commission commenters expressed general support formal proceedings, inevitably will lead published in the Federal Register for the proposed rules 11nd provided intervenors to complain that their proposed amendments to its Rules of specific comments* and suggestions on allegations require the use of the more Practice (10 CFR Part 2) .that would particular provisions. Three commcnters extensive formal procedures. Regarding specify the particular procedures opposed the rules as provlding the issue of the suitability of applicable to informal adjudicatory insufficient procedural protections for "adjudicatory" procedures, the hearings. In accordance with section intervening parties. Two other commenter appears to be questioning. 189a of the Atomic Energy Act of 1954 commenters opposed the rules as the advisability of using a trial-type, (.'\EA) (42 U.S.C. Z239(a)), informal unnecessarily formalizing* the hearing adversary format, as opposed to more* hearings are conducted upon the request process for materials licensing legislative-type, informal procedures, to

 . of any person whose interest may be         adjudications. A review of ~he specific      resolve technical disputes. In its 2-SC-22

PART 2 STATEMENTS OF CONSIDERATION proposed rule, however, the Commission' parties a full and fair hearing. Although that formai hearing procedures are has sought to strike a necessary balance. there is no discovery, the proposed rules applicable to those adjudications between these two poles. Recognizing do provide that the NRC staff is to . instituted in response lo a notice of that interested persons within Llie create and update a hearing file

• proposed *action issued under 10 CFR meaning of AEA section 189a are . consisting of the materials relevant to 2.105(a)(7.) for "any otherHcense or ,
• statutorily afforded the status of the licensing proceeding, including the amendment as to which the Commission "parties" with an opportunity to application and any amendments to.the *determines that an opportunity for a .

participate in a hearing. 1 the rules allow application, any environmental public hearing should be afforded." participation though written and, in

• assessment or impact'statement, and However,; as the Commission's West
• limited circumstances, oral submissions any NRC report or correspondence* Chicago decision makes clear, the notice by which a challenged licensing action between the NRC and the applicant of proposed hearing referenced in can be supported or opposed. On the relating to the application. In addition, if* § 2.1o5(a)(7) is one that is issued when other hand, cognizant that these an oral presentation is found by the *
• the Commission has determined the materials licensing hearings need not. presiding officer to be an appropriate . public interest requires a formal hearing.

adhere to the Administrative Procedure. aid to fact-finding, the presiding officer.: West Chicago, 15 ~RC at 244-46. ' Act's (APA) adversary trial model set is given the authority to pose to .' Accordingly, the provision coi:rectly . .: forth in the formal hearing provisions of witnesses questions that have been reflects that hearings commenced in 5 U.S.C. 550-557, the Commission has : . suggested by-the parties. This is not ~e response to. a* notice of proposed action attempted to enhance the role of the . *; type of"cross-exainination usually

• issued under§ 2,105(a)(7) will, in
• presiding officer a*s a technical fact associated with formal adjudicatory accordance with § 2.700, be conducted finder by giving him or her the primary proceedings, as is described in more under the fo~aJ bearing procedures of responsibility for controlling the . detail in the discussion that follows:. SubparlG. **

development of the hearing record

• nonetheless, it still provides the parties beyond the initial submissions of the in the context of this more informal 2. Proposed§ 2.1203-Dockel, Filing, proceeding with an opportunity to. raise* and. Service .,

parties. Furtherr the Commission does not believe that the mere existence of a questions with the presidirig,offiCf!l; . '

• Section 2.1203 establishes the set of informal procedures will lead *to :
• ab.out ~ witness' testimony. , ** '
• administrative requirements for the an erosion of the distinction between . .. B. Comments Relating to Specific docket and *the filing and service of*

formal and informal proceedings or lead Proi*isions of the Proposed Rule . documents in each proceeding. One to undue confusion about when the use commenter recommended that _the rule of either type of proceeding is

• 1. Proposed § 2.1201...:..scope of set out requirements for documents in appropriate. See generally Sequoyah Proceeding terms of size; signatures, numbers of Fuels Corp. (Sequoyah UF6 to UF4 One Commenter has raised two copies, etc. A new paragraph (cl Facility), CLl-86-17, 24 NRC_489 (198~) . concemsabout § 2.1201 of the proposed implements this suggestion. The (Commission declines to .accept .. rule, which *describes those materials * *
• provisions, of § Z.711 *relating to the * .
• presiding officer's suggesti_on to convert licensing actions for"which informal - *** extension and reduction of time* limits* .. ,

informal hearing to fonnal_proceeding).-

• hearings are provided. This commenter . are referenced iii paragraph (d). * *

2. Hearing Procedures are Too Informal

• pointed out that in previous-instances -This commenter also suggested that, involving a request under 10 CFR 20.302 this section incorporate the .

In contrast to the comments discussed for agency approval of proposed

• requirements of §*2.712 relating to above; several individuals and public procedures for the disposal of very low- service of documents. The proposed interest groups asserted that the level radioactive waste not covered by- § 2.1203(d), which leaves it up to the Commission's proposed informal .* 10 CFR Part 61, the Commission has
• presiding officer in the first instance to
• procedures were too "infomial." In authorized the use of informal hearing *
• set any rules for service of documents, particular, these commenters decrie4 the procedures and suggested this does not - ' was intended to add to the inform1,1lity failure of the rules to provide for *
• appear to be covered by proposed : of the proceedings. After further discovery or for wide-ranging cross- § 2.1201. An authorization under
• consideration, however, the Commission examine tlon by parties to the § 20.302, which is not referred to concludes that establishing rules for proceeding. specifically in § 2.1201, generally comes
• routine matters such as document Parties generally have no right to about as an amendment to an existing service contributes to the efficient discovery even in APA "on the record" byproduct, source, or special nuclear *
• conduct of. the proceeding* for both the hearings, unless discovery procedures material license issued under Part 30, 40, parties and the presiding officer.

are authorized by agency regulations.* *

• or 70. As an amendment for ** Accordingly, the CommiBBion has added Further, because the CommiBBlon is not authorize tion to dispose of matefials language fo .that paragraph, which is required to conduct an APA "on the . a held under an existing materials'.
• now designated as (e), referencing the,**

record" hearing in a materials licensing licenses, rather then a request for a .._.* -requirements of §*2,712, *

• case; the-parties in these cases have no license to operate a waste disposal .

right to cross-examination under the 3. Proposed § 2.1205-Requesi for a .

• facility under 10 CFR Part 61, this Hearing: Petition for Leave to Intervene Commission's "on the record" hearing
• authorization clearly falls within procedures in 10 CFR Part 2, Subpart G. § 2.1201. The same*would be true of This provision, which describes how a Nor does the CommiBBion believe these various other Part 20 authorizations, request for a hearing or a petition to .

measures are necessary to_afford the *** which relate to a license iBSued under ..

• interven~ is to be lodged lilld treated by Part 30, 40, or 70. E.g., 20.105(a). the agency, was the subject of !l number
• Because an Interested person hes a atututory Accordingly, no specifio reference is of comments that are discussed- below .

risht lo requeal and receive.a hearing on lhoee required in § 2.1201 to ci>ver these. * . according tp subject matter. . maleriels licenains acUorui 1peclfied In AEA eecUon authorizations. * - 18Da, the Commlaslon cannot, aa one licenaee a. Notice"of materials licensing appeared to ausseat. almply decline lo convene any This commenter also suggested this actions/timing of nearing requests. In melerinls llcenslns hearings. provision is too broad because it states . . the proposed rule, the Commission 2-SC-23

PART 2 STATEMENTS OF CONSIDERATION described its long-standing practice of mate1ials*licensing actions through a  !.~land Lighting Co. (Shoreham Nuclear limiting Federal Register notice for the Federal Register notice relating to the Power Station, Unit 1), ALAB-743, ta thousands of material licensing receipt of the application or to NRC NRC 387, 398 n.37 (1983). On the other applications it receives annually to environmental findings relating to the. hand, it is apparent that whether to those that are significant. For those licensing request (e.g., a negative provide for further admission of late-applications for which no Federal . declaration of the need to prepare an filed petitions and the terms under Register notice is published, proposed environmental impact statement). Also, which they will be admitted ultimately

§ 2.1205(c) provided that a hearing                          those persons truly interested in e              is a matter committed to the agency's petition would be considered timely if                        particular materials licensee's activities       discretion.

filed within thirty days after the can keep abreast of pending mutters by In most instances, materials licensing petitioner receives actual notice of a periodically contacting appropriate NRC actions do not involve substantial licensing action or. within one year after headquarters or regional personnel for hazards to public health and safety. completion of the agency action, information concerning the* license. With After weighing the matter carefully, we whichever occurs first. Section Z,1205(c) these vehicles in place for providing the

• have-concluded that, in the context of also declared any petition filed beyond . public with information concerning materials licensing, considerations of this period would be considered timely
• materials licensing actions, the
• regulatbry finality counsel that the only upon a showing of exceptional Commission does not believe it is Commission place a heavy burden upon circumstances. In response, several necessary or prudent to expend the those who wish to institute a hearing commenters asserted that the agency's substantial additional agency resources proceeding more than six months after notice practice. was improper and urged that would be needed to publish notices the agency has approved the applicant's that Federal Register notice be given for in the Federal Register for each of the
• request for licensing action. Therefore, each materials license application approximately five thousand materials **. to avoid the litigation of stale claims, in received. Other commenters, _principally. licensing actions the agency takes on lieu of the reference in§ Z.1205(c) to the materials licensees or their legal average every year. See NRC 1987 *. grant of a late-filed initial hearing counsel, challenged the provisions Annual Report at 73. In.addition to the
• petition on a showing of "exceptional allowing timely hearing petitions to be staff resources that would be required. to circumstances" and the language of filed up to one year after the licensing_ prepare the notices, the NRC staff * § 2.1Z05(k) that provided for the use of action and permitting subsequent estimates that it would cost in excess of the formal hearing late-filed petition petitions upon an "exc!Jptional one hundred thousand dollars annually
• factors in § 2.714(a)(l), the Commission circumstances" showing. Allowing up to simply to pay the cost of publishing has substituted new language in one year to file a challenge leaves notices in the Federal Register for all § 2.1205(k). The paragraph now states licensed activities under an unnecessary these actions. The Commission also thatto gain admissfon* of a late-filed cloud, they assert. Instead, the period .
• finds the alternative notice suggestion request, whether an initial request or a for filing should be shortened to 120 made by one commenter unacceptable. petltion t9 intervene, the requestor or days or less. Also, they contend, the Similar or higher costs to.the agency .* intervenor will have the*heavier burden exceptional circumstances provision could be expected if the agency o(establishing that (1) the delay in filing should be deleted in favor of a provision published notices in local newspapers. the hearing request or intervention that mandates that after the period for On the related question of the timing petition was excusable; and (2) the grant filing a petition expires the appropriate of a hearing request when there is no of the hearing request or intervention challenge to a licensing action is to file a Federal Register notice, the Commission petition, which institutes a hearing petition for enforcement or other agrees with the comments that a lesser
• proceeding to explore the efficacy of the appropriate relief under 10 CFR 2.206. period of time may be appropriate for.. agency's licensing action, will not cause The Commission continues to believe that its present practice regarding accepting hearing requests as timely. .undue prejudice or injury to any Federal Register notice for materials Balancing the interests of materials
• participant to the proceeding, including licensing applications comports with all licensees in prompt closure for potential the applicant and the NRC staff if the applicable legal requirements and, under licensing action challenges against the staff chooses to be a party. Essentially, the circumstances; is appropriate in public interest in allowing a reasonable* the paragraph requires that the terms of the allocation of agency opportunity for "interested persons" to requester or petitioner demonstrate that resources. As noted in the proposed avail themselves of their section 189a the well-established doctrine of "laches" rule, the Atomic Energy Act does not hearing right, we find th~t allowing an would not bar the institution of a
• require that any notice be given of a initial hearing request to be filed for e proceeding. Additionally, this provision materials licensing action. Given the period of six months after a materials has been revised to state that any lack of any constitutional right to a licensing action not noticed in the untimely hearing request or intervention hearing in the usual materials licensing Federal Register is appropriate. petition that cannot overcome this case, see West Chicago at 645, the The Commission does not agree with laches bar wiU be referred for Commission does not agree with the the comment that any hearing requ*est or disposition in accordance with 10 CFR argument that there is a general petition to intervene filed after the six- Z.206.

constitutional right to notice of the month period should be treated only as* Also on the subject of notice, one opportunity for such a hearing. 11 a petition under 10 CFR 2.206. In

• commenter suggested that the Further, the publication of notices for determining under what circumstances Commission clarify the meaning of all materials licensing activities cannot the agency will entertain a late-filed I 2.1205(c)(l) to make it clear that the be justified as a judicious use of limited petition, consideration undoubtedly first Federal Register notice relating to a agency resources. Under present
• must be given to the fact that the materials licensing application, practice, notice is given of significant hearing provisions in the Atomic Energy including a notice about activities under Act suggest a congreBSional policy the National Environmental Policy Act, *
• All explained below, notice le given of thoae fostering a degree of citizen
• triggers the thirty-day.period within
• purtlciller meterlels llcenullljl uctlona that are more participation in specified types of which a hearing request must be filed in aignificant.
• nuclear licensing proceedings. See Long order* to be timely. The Commission hRs 2-SC-24

PART 2 STATEMENTS OF CONSIDERATION done so. The Commission would add upon the standards that are enunciated. filing of hearing requests, so as not to that, in response -to the suggestion of one in § 2.714 for formal adjudications. The * * "encourage" additional hearing commenter, it has revised the rule to

• Commission indicated that the standing demands. The Commission disagrees
• state that for en initial Federal Register . decision should be based upon an , with this comment because it notice regarding a particular application analysis of the particular material that* misconstrues the purpose of this or licensing action, the notice must was the subject of the licensing action . provision. In instances when a Federal include a statement that the opportunity and not the "fifty-mile radius" rule that Register notice previously has not been for a hearing exists under the had developed with respect to power issued relating to a materials licensing procedures set forth in Subpart L. reactor licensing proceedings. (52 FR at *action, once a hearing request regarding In addition, this commenter requested 20090). Several commenter& agreed with. that action has been received and that the provisions of§ 2,1205(c)(2) the Commission's rejection of the fifty. . granted; it is in the agency's interest to concerning "actulll notice" be changed mile standard for materials licensing. * : *ensure that only one proceeding need be lo indicate that timeliness One commenter went on to suggest that conducted. The purpose of this provision determinations will be based on instead the CommiSBion should create a
• is to provide constructive notice to all whether the petitioner either knew or presumption that anyone residing (and interested persons of the date by which should have known of the pending presumably working) outside of a five- any further hearing requests must be licensing application or action. A finding mile radius of the site where the nuclear* filed, thereby cutting off any that the petitioner should have known materials in question are possessed intervenor's later assertion of timeliness would be based upon sucb factors as ** *.
• does not have standing. The based upon lack of actual notice.

newspaper accounts. The Commission . *n, Commission rejects this suggestion. The-*:; Citing previous Licensing Board declines to adopt this suggestion. H-a. ** standing of a petitioner in each case *

• practice in individual lnfonnal Federal Register notice bas not been should be determined based upon the prqceedings, see, e.g., 51 FR 8920; March published, a determination about circumstances of that case as they relate
• 14, 1986, one commenter also suggested whether and wlfen a petitioner to the factors set forth in paragraph (g) *.
• that the rules provide the presiding otherwise had actual notice should be c. Litigation subject matter. At the officer with the authority to require that based upon the petitioner's particular suggestion of a commenter, the a petition to intervene must include factual situation rather than Commission has added language to particular information on the presumptions about what other than paragraph (g) indicating that in a[J.dition intervenor's concerns about the Federal Register publication provides to making a standing determination with materials licensing action, like that constructive notice, as the commenter respect to granting a hearing petition.- or, required by § 2.1233 for the intervenor's seems to contemplate. Moreover, to aid . by reason of its incorporation in written presentation. This type of in making that determination the
• paragraph (j), an intervention petition,* requirement likely is not practicable Commission has, as the same the presiding officer should rule upon under the present regulatory scheme.

commenter suggested, provided in whether the petitioner desires -to litigate* Under the Licensing Board's practice paragraph (d) to this section that the matters that are germane to the (which the comments of this and other request for a hearing should detail the . proceeding and whether the hearing commenters regarding the creation of a circumstances that establish, in request is timely. Further in this regard, hearing file make it apparent they . accordance with paragraph (c), that the to clarify exactly what information a . disliked), the applicant was respons_ible request is timely. With that information, petitioner must supply In its hearing or for assembling a bearing file and making as well-as any answer from the intervention request. the. Commisilion . it available to potential intervenors applicant or the NRC staff (if it has revised paragraph (d) to state that "immediately" upon the receipt of the participates as a party), and any the petitioner must provide a concise notice granting an initial bearing additional information requested from statement of the areas of concern the request. As the Licensing Board's the participants, a presiding officer requestor desires to raise at the hearing. notices make clear, immediate action should be able to make an informed This statement of concerns need not be* was neceSBary to allow additional detemiination about when a petitioner . extensive, but it must be sufficient to intervenor& to file a detailed petition/ . (which in the case of partnership, .. establish that the issues the requester initial written presentation within thirty corporation, or unincorporated wants to raise regarding Jhe licensing days. 51 FR at 8921, March 14, 1988. As association would include its directors,* action fall generally within the range of is discussed infra, the present scheme officers, and any members duly matters that properly are subject to gives the NRC staff the duty of authorized to represent it) bad actual challenge in such a proceeding. It should compiling the hearing file within thirty notice, We note that under§ 2.1205(j) be added that a similar requirement bas days of the grant of an initial bearing the additional requirement of a showing been provided for those who wish to . request, the same period of time within of timeliness also would ordinarily request nonparty participation. status- . *" * . which any intervenor must file a apply to those seeking to intervene under I 2.1211(b). petition. It would not be equitable to pursuant to a Federal Register notice of. * *

• d. Intervention. Section 2.1205(i) of the require an intervenor to file its written hearing. These intervenor& would proposed rule states that if a request for presentation setting forth all its ordinarily have to show that they did a bearing was granted and no previous concerns without access to the hearing not have actual notice of the licensing Federal Register notice bas been file. Of course, the intervenor is required action prior to the notice of hearing. published. a notice of hearing is to be to identify the areas of concern it wishes

b. Standing. Paragraph (g) of proposed put in the Federal Register that, among , to raise in the proceeding, which will I 2.1205 states that in determining other things, will indicate that any , , , .. provide the presiding officer with the whether a particular petitioner has additional hearing requests relating to minimal information needed to ensure standing to participate in an informal the licensing proceeding should be filed**** .the intervenor desires to litigate issues adjudication. the presiding officer is to within thirty days. One commenter has germane to the licensing proceeding and consider whether the judicial standard suggested that tp.is should be changed therefore should be allowed to take the for standing is met. The presiding simply to a reference to paragraph (c) of. additional step of making a full written officer's determination is to be based the same section, which provides for the presentation under I 2.1233.

2-SC-25

PART 2 STATEMENTS OF CONSIDERATION

e. Staff licensjng action during involved and finds that the information days of the notice of hearing issued pendency of a hearing. In explaining its will not be supplied voluntarily. The under§ 2.1205(1). By adding these proposed rule. the Commission declared issuance of such an order is solely specific provisions relating to the time of that after weighing the private and within the power and discretion of the § 2.1211(b) participation requests, the .

governmental rights involved, it presiding officer. Therefore, contrary to Commission intends to ensure that all . concluded it would not require the the commenter's suggestion, there is no I 2.1211(b) participants become involved completion of any requested hearing need for the procedures that govern

• in the proceeding from Its inception, before the NRC staff could take the subpoena requests as in formal hearings. thereby maximizing their participation .

licensing action requested by the 5. Proposed § 2.121,-Nonparty while minimizing the possibility for later applicant. Section 2.1205(1) Participation

• delay; memorializes this determination.

Although one commenter questioned As in formal hearings, the 6, Proposed § 2.1231-Hearing File this conclusion, the Commission

• Commission has provided for nonparty Unique to the informal proceeding is continues to believe that it has struck participation in informal adjudications the hearing file that is required by the appropriate balance, particularly by "interested" state and local § 2.1231. That file is to be compiled by since a process has been provided in governments and by linuted appearance the NRC staff.and provided to the

§ 2.1263 whereby the staff's action can          statements for interested groups and              presiding officer, the applicant, and all be stayed, if appropriate. *            .         individuals. One commenter protested           . parties and I 2,1211(b) participants to Another commenter declared that the          that the statement in I 2,1211(a) that "[a).

• the proceeding. It is to consist of the Commission should revise the language limited appearance statement is*not to. application for licensing action and any of paragraph (1) to indicate that the be considered part of the decisional amendment to.the application; any NRC staff, rather than "need not" delay in record" ls evidence of the undue safety, environmental, or other reports issuing the license, is obligated to restraints being placed upon public relating to the application: and any proceed In the absence of a stay. The participation in-informal adjudications relevant correspondence between the Commission declines to adopt this compared to formal hearings. This. NRC and the applicant. Commenters suggestion: The purpose of this language, however, is merely a . raised questions about how and when provision is to indicate that in the face restatement pf the practice followe4 in*.
• the file is to be made available to those of a hearing request it was permissible formal proceedings with respect to * .involved in the proceeding and about for the staff to proceed to act in a limited appearance statements. the protections that would be afforded particular proceeding if, in its judgment, Other commenters suggested that to proprietary and other sensitive the action was appropriate. As indicated paragraph (b) concerning participation information that documents in the file previously, the Commission certainly by interested state and local gh contemplates that when the staff is able governments be revised ~o include a *,
• mi t contain.

to reach a positive conclusion about the standing requirement and to mandate The Commisaion previously has safety and environmental consequences* that these entities request permission tp addressed one !Commenter's observation of a-proposed licensing request, it will ** participate within thirty days of the . *

• that providing the NRC staff thirty days take action despite a pending hearing grant of a hearing request. The to prepare and make the file available request. The determination about . . Commission declines to adopt the first will impinge on the existing Licensing whether or not it is appropriate to suggestion. As in formal adjudications Board practice of requiring a joint proceed with a particular licensing under § 2,715(c), there is no formal
• intervention petition/initial written action prior to the conclusion of the "standing" requirement for "interested presentation. See 11.B.3.d. supra. The proceeding before the presiding officer state" participation in informal hearings; thirty-day period ls retained, subject to ls left to the NRC staff, based on its
• those state and local governmental .
• adjustment by the presiding officer. as technical and administrative judgment. entities that can demonstrate a * . the circumstances of a particular case cognizable interest in the licensing ** .
• may require.

4. Proposed § 2.12~Presiding Officer's proceeding should be allowed to This commenter also questioned Powers participate under'§ 2.1211(b). See Exxon whether the requirement to make the One commenter questioned whether

• Nuclear Co. (Nuclear Fuel Recovery and hearing.file "available" to parties and two of the powers afforded presiding Recycling Center), ALAB-447, 6 NRC 873 § 2.1211(b) participants would mandate officers by § 2.1209 are appropriate. The (1977). . that the NRC staff serve the file upon first of these is the power under On the other hand, as Commission
• them, with the attendant costs in paragraph (d) to certify issues to the precedent relating to formal proceedings instances when the file is large. The Appeal Board. We have concluded it i~,. suggests, interested governmental proposed rule did envision that service for the reasons discussed more fully entities *that do seek to come into a ** of the file might be one way to make it*

infra. The other is the power to. proceeding generally must comply with available, depending on the size of the subpoena documents or witnesses any rules relating to timely intervention. file. As the commenter points out, afforded by paragraph (h). Thie is See Cleveland Electric 1/Juminating Co. another way would Q8 to make it improper, the commenter declares, (Perry Nuclear Power Plant, Units 1 & 2), available locally. To clarify what is because it would invite discovery CLl-86-20, 24 NRC 518 (1966). As a meant by "available," we have revised requests ..The Commission does not consequence, the Commission has paragraph (a) to make it clear that agree. The purpose of this provision is to added language to I 2.12ll(b) declaring service upon the parties and§ 2,1211(b) make it clear that the presiding officer that in instances in which Federal participants and.local availability are has the authority under AEA section Register notice has been given under alternative means of fulfilling this 161c, 42 U.S.C. 2201(c), .to issue a § 2.1205(c)(l), a request for § 2.1211(b) requirement. Which method the NRC subpoena for documents or witnesses if, participation must be filed within thirty staff chooses w1doubtedly will depend in the course of conducting the

• days of an order granting a request for a on the circumstances of the proceeding.

proceeding, he or she determines that hearing. Alternatively, if no notice has This commenter also expressed strong the information is necessary for the full. been issued, the request for reservations about the proposed rule's and fair explo,.ation of the issues participation must be filed within thirty requirement that the applicant would be 2-SC-26

PART 2 STATEMENTS OF CONSIDERATION responsible for making the file publicly hearing file, the Commission doubts that examination of witnesses by available locally. After careful a joint intervention/written presentation nonsponsoring parties. To clarify this consideration we have decided to shift filing will be appropriate in most matter, the Commission has included this responsibility to the NRC staff, with instances. See II.B.3.d. supra.

• language in paragraph (a) stating that the understanding that if this In this regard, the. Commission has not the responsibility for the examination of "availability" option is chosen. the file adopted the suggestion of another all witnesses rests with the presiding need be maintained only through the commenter that the rule contain officer, who may allow parties to end of the licensing proceeding. And, if language setting specific time frames propose questions for the witness that the staff chooses to use service as the within which an initial presentation and the presiding officer can pose if the means of making the file available to any reply thereto must be filed after the questions are found appropriate. The participants in the proceeding, requests date the hearing file is made available. Commission recognizes that by requiring.

for the file by other members of the While the Commission endorses the the presiding officer to make public do not require that arrangements concept that written presentations determinations about the propriety of for local availability must be made. should be made' as promptly as possible, each question for a witness, an Instead, these requests can be handled the Commission continues to believe additional burden ii! being imposed that through the usual NRC process for

• that the presiding officer will be in the could involve delay in the proceeding making public documents available. best position to set a schedule based while the parties compose arid the
• The matter of protecting proprietary , upon *bis or her review of the issues presiding officer decides the propriety of and other sensitive information relating raised in each hearing petition. The* questions for each witness. Nonetheless, to a licensing action was raised by Commission also cannot endorse this because or~l presentations should be another commenter. Although the plain commenter's suggestion that language necessary only in those rare instances ~n language of § 2.790 appears to cover. this should be added that would direct that which the writ.ten presentations leave issue for materials licensing the submission of written presentations unresolved issues that the presiding proceedings, to eliminate any ambiguity* .
• should not await the completion of any officer fmds can be decided only after in this regard we have included a NRC staff safety or environmental having oral presentations, and because reference to that provision in§ 2.1203(a). analysis that is being prepared relative proposed questions undoubtedly can be to the licensing application. Again, this prefiled in many instances, the

7. Proposed§ 2.123~-Written is an issue best left *to the discretion of Commission expects these procedural Presentations the presiding officer. The Commission requirements to be manageable.

An important difference between the notes, however, that because the NRC informal hearing provided for in Subpart staff can take a licensing action prior tc;,. One other commenter questioned L and the formal proceeding conducted whether the language in paragraph (b) the completion of a hearing on the stating that "[a]ll oral presentations under Subpart G is the written. application, any delay in the hearing presentation outlined in I 2.1233. The that mighfbe caused by awaiting a staff . * * *, unless the presiding officer orders Commission contemplates that in the safety or environmental evaluation otherwise, must be public," is designed vast majority of cases these . would not necessarily translate into a to give a_presiding officer more latitude presentations and follow-up written delay in license issuance.

• to hold nonpublic informal hearings than questions, rather than an oral hearing Finally, one commenter suggested that is provided for formal adjudications .

before the presiding officer, will be the specific language be added to paragraph under Subpart G. In fact, there was no vehicle by which the parties and any (c) to indicate thatapplicants have the . intention that this provision be

 § 2.1211(b) participants are heard and         right to file a reply to the written           substantively different from t 2.751, the issues resolved.                           presentation of those parties who              which governs formal hearings. To avoid Commenter concerns about this                challenge the requested licensing action. any ambiguity, the Commission has provision centered on issu*es of timing,       While the right of an ap*plicant, as a         added language to paragraph (b) to that is, when will written presentations        party to the proceeding, to file a written    make it clear that this section parallels be required to be submitted. Section            presentation is implicit In the language      12,751.               .

2.1.233 as proposed stated that the timing of paragraph (a), the Commission has 9, Proposed I 2,1251-lnitial decision and sequence of these presentations is added additional language.to that to be set by the presiding officer after paragraph clarifiying any ambiguity. The Two commenters raised questions any notice of hearing and after the NRC sequence and timing of that submission about§ 2,1251, which specifies that after staff has made the hearing file available remains in the discretion of the completion of the informal written and, to the parties. One commenter suggests presiding officer.

• if necessary, oral presentations, a that the provision be reworded to make presiding officer must render an initial it clear that an order establishing the 8, Proposed § 2.1235--0ral decision, unless the Commission schedule for written submissions may presentations chooses to undertake that task itself by be issued before the end of the thirty- In the event that the written* having the record certified to it. One day period that the staff has to make the presentations afforded by § 2.1233 and commenter suggested that, as with hearing file available. The commenter the responses to written questions posed* § 2,764, there should be language making repeats its plea that this is necessary to by the presiding officer prove to be the initial decision immediately effective allow for the continuation of the inadequate to resolve-the issues raised; so as to authorize the NRC staff to take Licensing Board practice of having the presiding officer is given the
• the appropriate licensing action. Section intervention petitions include the discretion to allow or require the parties 2.1205(1), which authorizes the NRC information required for the initial to make oral presentations. These staff to take a requested licensing action written presentation. The Commission presentations may include the testimony without regard to any pending hearing adopts the suggested wording change. of witnesses. Commenters expressed request. undoubtedly will provide the As indicated previously, however, concern that the language of I 2.1235 did
• functional equivalent of an effectiveness because the NRC staff rather than the not make clear the parameters under provision in many instances. The applicant is now responsible for which oral presentations were to be possibility exists, however, that the staff compiling end making available the allowed, particularly with respect to. will not yet have taken any action or, if 2-SC-27

PART 2 STATEMENTS OF CONSIDERATION the staff has acted, the presiding materials licensees. As a result, the Regulatory Flexibility Certification officer's determination may include Commission has decided to retain license conditions that were not Appeal Board initial review of presiding The final rule will not have a imposed by the staff. In these instances, officer decision, subject thereafter to sua significant economic impact upon a it would be appropriate for the presiding sponte Commission review. substantial number of small enttties. officer's decision to become Many materials licensees or intervenors immediately effective so as to authorize C. Additional Comments fall within the definition of small the staff to take the appropriate One commenter made two additional businesses found in section 34 of the licensing action promptly. Accordingly, suggestions. The commenter suggested * . Small Business Act, 15 U.S.C. 632, or the the Commission has added paragraphs that the materials licensing rule contain Small Business Size Standards set out in (e) and (f) to § 2.1251 to indicate that the a provision regarding burden of proof in regulations issued by the Small Business presiding officer's decision will be immediately effective, subject to nny the proceeding and a provision on Administration at 13 CFR Part 121, or stay that might be sought and granted in motions procedures. The Commission the NRC's size standards published accordance with § 2.1263. has included a new § 2,1237 that would December 9, .1985 (50 FR 50241). While A second commenter suggested that incorporate the appropriate provisions the final rule would reduce the litigation the time within which an initial decision of Subpart G relating to these matters. cost burden upon licensees or will become final agency action, absent intervenors because of the informal Environmental Impact: Categorical nature of the hearing, the requirement an appeal, should be thirty days rather Exclusion **

• than the forty-five days specified in the that they submit filings and proposed rule. The Commission agrees The NRC has determined that this documentary information detailing with this proposal and paragraph (a) has final rule is the type of action described contested legal and factual issues is still been revised accordingly. in categorical exclusion 10 CFR required. Some cost reduction in

10. Proposed §§2.1253-.1257-Agency 51.22(c)(1). Therefore, neither an comparison to the cost of participating Appellate Review of a Presiding

• environmental impact statement nor an in a formal adjudicatory hearing can be Officer's Determination environmental assessment has been anticipated, although itis problematic prepared for this final rule. whether that reduction as a whole will Under § § 2.1253-,1257 cif the proposed be significant. Certainly, the use of rule, parties and § 2.1211(b) participants Paperwork Reduction Review informal procedures will not increase to an informal adjudication would have This* final rule contains no information significantly the burden upon licensees an appeal as of right to the Atomic Safety and Licensing Appeal Board, as collection requirements and therefore is to respond to hearing requests. Thus, in they do under the existing practice for not subject to the requirements of the accordance with the Regulatory formal adjudications.-Several Paperwork Reduction Act of 1980 (44 Flexibility Act, 5 U.S.C. 605[b), the NRC commenter& criticized this provision as U .S.C. 3501 et seq.). . certifies that this rule does not have a bringing an unnecessary and overly Regulatory Analysis significant economic impact upon a formal step into the informal hearing substaptial number of small entities.

process. Une commenter recommended . The Atomic Energy Act affords that any review be limited to interested persona the right to a hearing Backfit Analysi1. Commission-conducted sua sponte regarding a materials licensing consideration of the presiding officer's . proceeding. As the Commission The final rule does not modify or add decision to determine whether there previously indicated in its West Chicago to systems, structure, components, or were any errors that require correction.

• decision, 15 NRC at 241, the use of de.sign of a facility: the design approval For those informal materials licensing informal procedures involvei, les.s cost or manufacturing license for a nuclear hearing proceedings convened since the and delay for parties and the reactor facility; or the procedures or West Chicago proceeding, the only Commission than the use of formal, ~al- organization required to design.

appellate review provided has been a type procedures, the only other construct, or operate a facility. Commission sua sponte review of the procedural alternative. Also, procedures Accordingly, no backfit analysis presiding officer's decision, such as is must be in place to allow for orderly pursuant to 10 CFR 50.109[c) is required suggested by the commenter. As a result conduct of those adjudications. for this final rule. of its experience in those proceedings, Codifying the informal hearing the Commission has concluded that the procedures for materials licensing List of Subjects in 10 CFR Part 2 interest of all parties is better served if proceedings in preferable to the only the Appeal Board is given the initial Administrative practice and other alternative, which is the present opportunity to consider any arguments procedure, Antitrust, Byproduct concerning errors in a presiding officer's

• practice of establishing the procedures .

legal or factual findings relating to a to be followed on a case-by-case basis.

• materiel, ClaBBified information, Environmental protection, Nuclear particular licensing action. The Appeal By codifying the procedures. the materials, Nuclear power plants and Board, whose principal function is the Commission will avoid the expenditure reactors, Penalty, Sex discrimination, review of adjudicatory records in formal of time and resources necessary to Source materiel, Special nuclear licensing matters, generally is in as good prepare the individual orders that previously have been used to designate material, Waste treatment and disposal a position as the Commission to provide a thorough, prompt, initial appellate those procedures. It thus is apparent
• For the reasons set out in the review of individual informal that this final rule is the preferred
• preamble and under the &uthority of the adjudicatory decisions, ea well as alternative and the cost entailed in its ... Atomic Energy Act of 1954, eli amended, interlocutory certified questions, thereby promulgation and application is the Energy Reorganization Act of 1974, freeing Commission resources for the necessary and appropriate. The as amended, and 5 U.S.C. 552 and 553, consideration of broader policy matters foregoing discussion constitutes the the NRC is adopting the following relating to reactor facilities and regulatory analysis for this final rule. amendments to 10 CFR Part 2:

2-SC-28

PART 2 STATEMENTS OF CONSIDERATION 54 FR 14925 objective of the negotiated rulemaking identification of relevant documents end Published 4/14/89 was to develop the essential features of issues; Effective 5/15/89 the procedural rules for effective .

• Enabling the comprehensive and 10CFR Part2 Commission review of the U.S. early review of the millions of peg~s of Department of Energy (DOE) license relevant licensing material by the RIN 3150-AC44 application withi~ the three-year time potential parties to the proceeding, so as period required by section 114[d) of the to permit the earlier submission of better
• Submission and Management of Nuclear Waste Policy Act of 1982, as Records and Documents Related to focused contentions resulting in a amended ("NWPA"). The negotiating substantial saving of time during the the Licensing of a Geologic committee completed its deliberations in Repository for the Disposal of High- proceeding:

July 1988. Based on the committee

• Level Radioactive Waste
• Providing for the electronic deliberations, the Commission approved a proposed rule that would revise 10 transmission of all filings duirng the AGENCY: Nuclear Regulatory hearing, thereby eliminating a Commission. * *
• CFR Part 2 to establish the procedures for the HLW proceeding. The proposed significant amount of delay.

ACTION: Final rulemaking. The Negotiating Committee. The rule was published on November 3, 1988.

SUMMARY

The Nuclear Regulatory The comment period closed on Commission used the process of Commission is amending the December 5, 1988. After consideration of

• negotiated rulemeking to develop the Commission's Rules of Practice in 10 the public comments, the Commission is* proposed rule. In negotiated rulemaking, CFR Part 2 for the adjudicatory promulgating this final rule. the representatives of parties who may proceeding on the application fo~ a The LSS is intended to provide for the be effected by a proposed rule, lnclud~ng license to receive and possess high-level entry of, and access to, potentially the Commission, convene as a group
• radioactive wa:ite at a geologic relevant licensing information es early over a period of time to attempt to reach repository operations area pursuant to es practicable before DOE submits the consensus on the proposed rule; 10 CFR Part 60. The revisions establish license application for the.repository to The first meeting of the negotiating the basic procedures for the licensing the Commission. The LSS would contain committee was held in September 1987.

proceeding, including procedures for the the documentary material generated by The negotiating committee completed its use of the Licensing Support System, an DOE, NRC and other parties to the deliberations in July 1988. electronic information management licensing proceeding, which are relevant* The members of the negotiating system, in the proceeding. The revisions to licensing of the repository. All parties committee are-:-, are based on the deliberations of the would then have access tci this system Commission's High-Level Waste .

• DOE well before the proceeding begins.

Licensing Support System Advisory Access to these documents will be

• NRC Committee. The Advisory Committee provided through electronic full text
• State of Nevada.

was composed of organizations search capability. This provides the

• A coalition *of Nevada local representing the major Interests likely to flexibility of searching on any word or governments .

be affected by the rulemaklng, and was established by the Commission pursuant word combinations within a docqment

• A coalitation *or industry groups .

to the Federal Advisory Committee Act, and thus facilitates the rapid. * . . . ;[Edison Electric Institute/Utility.. 5 U.S.C. App. 1, In September 19B7. identification of relevanf documents and .. Nuclear Waste Management. issues. Because the relevant information . *croup/U.S. Co~cil for Snei;gy EFFECTIVE DATE: May 15, 19B9. would be readily available through .. A,wareness)

• FOR FURTHER INFORMATION CONTACT: access to the LSS, the initial time-Francis X. Cameron, Office of the * .National Congress of American consuming discovery prpcess, including.,. Indians General Counsel, u;s, Nuclear the physical production and o~-site.. * * * * :.

Regulatory Commission, Washington,

• A coalition of national environmental review of documents by parties to the .* \ :
• groups (Environmental Defense DC 20555, Telephone: 301-492-1623. HI..W licensing proceec:Ung, will: be...,' : ':: :

SUPPLEMENTARY INFORMATION: substantially reduced. * *

• Fund/Sierra Club/Friend~ of the
• Earth).
• Background The use of the LSS in the HLW licensing proceeding is to provide for All members of the negotiating On August 5, 1987, the Commission timely review of the DOE license committee, with the exception of the announced (52 FR 29024) the formation application by- industry coalition, agreed to the draft of the High-level Waste Licensing text of the proposed rule that was Support System Advisory Committee
• Eliminating the most burdensome ,

and time-consuming aspect of the discussed by the committee at its final ("negotiating committee") to develop meeting ("final negotiating text"). Under recommendations for revising the current system of document discovery-. i.e., the physical production of the committee protocols, the dissenting

• Commission's Rules of Practice in 10 vote by the industry precluded .

CFR Part 2 for the adjudicatory documents after the license application hes been filed-because the LSS 'will committee consensu1J *on*the propqsed proceeding on the application for a rule. 2

• license to receive and posseaa high-level provide for the identification and

.radioactive waste ("HLW") at a geologic submission of discoverable documents repository operations area ("HLW. before the license application is licensing proceeding").1 The ne!lotiating submitted; committee sought concensns on the

• Eliminating the equally burdensome procedures that would govern the HLW and numerous FOIA requests for the
• In the August 5, 1987, Fodera) Register Notice licensing proceeding, focusing primarily same information that both DOE and the that initiated the negotiated rulemaklns, the on the use of en electronic Information NRC will surely receive before and after Commission clearly inillcated tliat the LSS was only management system known as the the application is filed if the LSS does one of the mechanism, that the Commlaaion was Licensing Support System ["LSS"), in the not become a reality; considering to streamline the licensins process.

However, all participanta on the negotiating HLW lic~msing proceeding. The

• Enabling the comprehensive and committee, including the ind1111try, initially agreed early technical review of the millions of that a eisruficant contributer to licensing delay waa
• See Agreement In Prln.ciple Between the pages of relevant licensing material by document dlacovery and motions practice-lsaues Department of Energy (DOE) and the Nuclear Iha t the LSS was Intended to address. In this regard, Regulatory Commission (NRC] on the Development the DOE end NRC staff, through the ** the industry, later stated that the LSS would result of a Licensins Support Systems (LSS), February 27, provision of electronic full text search In little change In the length of the licensing 1987. capability which will allow the quick proceeding without further procedural changes.

2-SC-29

PART 2 STATEMENTS OF CONSIDERATION Those participants who approved the UNWMG, along with the U.S. Council NWPA's three-year time frame. In final negotiating text are DOE. the State on Energy Awareness, represented the particular, the certification of DOE of Nevada, the coalition of Nevada local industry on the HLW LSS Advisory compliance is necessary to assure that governments, the National Congress of Committee. The industry comments will relevant documents are in the LSS as American Indians, the coalition of be discussed in the context of the F,F.I/ soon as possible, so as to allow for national environmental groups, and the UNWMG comments, except where there early, pre-license application discovery. NRC staff. The final negotiating text was is a significant ~fference in an Any disputes over compliance with the carefuly drafted with the full individual comment letter. The rule will be resolved by the Pre-License participation of people with strong discussion of the public comments will Application Licensing Board established experience and background in NRC focus on the issues of cost-benefit, the in § Z.1010 before the license application practice. It reflected the concerns of the topical guidelines for the submission of is submitted. major interests affected by the documents ol the LSS, and the non-LSS

• The industry argues that the actual rulemaking. In fact, the industry aspects of the rule. performance of the LSS is unlikely to coalition, although dissenting on the Benefit-cost. The industry argues that live up to the expectations of the parties final negotiating text, fully participated the LSS is a "gigantic, highly because c.lot:uments that should be in the in the drafting of the final text, and had complicated, and extraordinarily data base will be missed entirely, and considerable influence on the wording expensive system" that will not that some of the documents captured of the final text. 3 significantly assist Commission could easily be incomplete in their The proposed rule was issued for a decision-making on the construction electronic form. Thie will lead to attacks thirty-day comment period. The authorization for the repository within on the accun,cy and completeness of the participants on the negotiating the NWPA timeframe. Rather than de.ta base. The Commission notes that committee who approved the final lea.ding to a reduction of the time for the final rule contains several provision11 negotiating text agreed to refrain from licensing, the industry believes that the intended to minimize and correct commenting negatively on the final LSS would lead to an extension of the inaccuracies and incompleteness.

negotiating text. if that text was licensing time. Therefore, the industry Section 2.1009 requires each puty to published by the Commission as a does not believe that the benefits of the establish procedures to capture the proposed rule. The industry coalition, as LSS justify the costs [estimated by DOE required documents. This section also well as any nonparticipants in the to be $200 million over a ten year establishes an early "'nd continuous negotiation, were free to comment period), and consequently, does not certification procesa, in which a party's critically on any aspect of the proposed support the r.ss. designated official muat certify that the

• rule, including cost aspects of the LSS.
• The industry argument against the party is in compliance with docwnent Consistent with the negotiating LSS ha11 two basic components: (1) The submission requirementa of the rule..

committee's function advise the LSS would not enable the Commission Section 2.1003[ih)(2.)(i) requires the LSS .Commission on the LSS rulemaking, the to meet -the three-year schedule for the . Administrator to begin monitoring DOE staff submitted. the comments on the* issuance of the construction

• compliance with the document proposed rule to the negotiating authorization mandated by the NWPA; submission requirements well before the committee for review and comment. The and (2) the costs* of the LSS have been license application is submitted. Section public comments on the proposed rule, underestimated. As an alternative to the 2.1004 provides a mechanism for and any comments from the negotiating LSS. the industry has proposed a
• amendments and additions to be made committee (the Commission received microfiche-based system in which lo the data base. In addition. the LSS comments from the State of Nevada, the relevant documents would be stored on will be operational before the license National Congress of American Indians. microfiche but would not be captured in application is submitted. allowing time and Lincoln County, Nevada), are electronic searchable full text. However. "for any errors or omissions to be summarized below. the indexes to the documents end the corrected. Furthermore. an image of all The comment period on the propo~ed bibliographic headers for the documents documents will-be available as a backup LSS rule closed on December 5, 191ffl. would be "computerized", presumably for the electronic texL Finally, as noted The Commission received nine in electronic searchable full text. Parties above, the rule establishes a Pre-License comments. Seven of these comments could request a copy of a doucment from Application Licensing Board to resolve were from various segments of the the LSS Aqministrator, and receive it by any disputes over accuracy and Nuclear industry, one was from DOE overnight mail. completeness of documents before the expressing support for the LSS According to the industry. the LSS
• license application is submitted.

rulemaking and. recommending several would lengthen the licensing process for

• The indua.try argues that the vast clarifications, and one was from formal the following reasons: quantities of data available in electronic trial counsel in the Commission's Office
• The industry argues that the LSS full text will provide parties with the of the General Counsel, now with the will create new procedural issues over opportunity to generate even greater firm of Hopkins, Sutter, Hamel & Park. which litigation is likely-for example*. amounts of discovery. The Commission Most of the industry comments the IBS*Administrator's certification notes that the LSS role establishes consisted of an endorsement of the ihat DOE ia in substantial and timely requirements for the submission of recommendations contained in the compliance with the document relevant documents in advance of the comment letter submitted by the Edison submission requirements in the rule. In license application. Because of the Electric Institute and the Utility Nuclear response, the Commission notes that. substantial amount of information that Waste Management Group("EEI/ although the LSS rule doea establish will be provided, the Commission does UNWMG"). As noted earlier, EFJ/ some new procedural requirementa, not anticipate continual discovery these requirements are necessary to requests for large amounts of additional

, The Commi**iun notes Iha! the imludtry ensure that the parties subje,~t to the documents. Purthermore, the Hearing c;c.Mllilion'e dis1enl un tho 6nal ne11nti11li1111 tex1 wli*

• rule are in substantial and timely Licensing Board le authorized to limit baaed on the Mame ralionlile-the COIII or the LSS-lhol ii had ael forth al the initial meeting or the compliance with its provisions, and discovery, specifically taking into negotiating committeu aome !en.months earlier. thereby facilitate compliance with the account the eArly availability of 2-SC-30

PART 2 STATEMENTS OF CONSIDERATION information provided by the LSS, and the application is filed if the LSS does the proposed LSS passes the cost/benefit compliance with the NWPA's three-year not become a reality; analysis because the key benefit of improved schedule. See §§ 2,1018(c), 2.1021(a)(5),

• Enabling the comprehensive and access to program information will certainly 2.1022(a)(6).
• early technical review of the millions of be served by the LSS and the costs of the LSS are not a significant fraction of the overall
• The industry argues that disputes pages of relevant licensir!g material by , waste program costs. We also support DOE's over the use of written interrogatories the DOE and NRC staff, through the and NRC's conclusion that the LSS would are certain to "plague the licensing provision of eleqtronic full text search shorten the licensing period for a repository board and discovery master." Section capability, which will allow the quick and, in that respect, would be likely to reduce 2.1016(a)(2) provides for the use of identification of relevant documents and overall program costs rather than jncrease written interrogatories only if authorized issues; them.

by the discovery master or Hearing

• Enabling the comprehensive and One public commenter, the former Licensing Board upon a showing that early review of the millions of pages of. NRC trial counsel, endorses the benefits informal discovery, which, as indicated relevant licensing material by the of the LSS and agrees with the staff below, is limited to such matters as the potential parties to the proceeding, so as belief that "the LSS will facilitate names of witnesses, has failed. to permit the earlier submission of better - greatly the objective of realizing an Furthermore, in ruling upon a motion to* *rocused contentions, resulting in a initial decision within 3 years of the authorize written interrogatories, the substantial saving of time during the filing of the application." This discovery master, or the Hearing proceeding:

Licensing Board may consider whether commenter goes on to state that "the

• Providing for the electronic HLW license hearings will be delayed the request creates the potential for transmission of all filings during the unreasonably interfering with meeting substantially" without the LSS. This is hearing, thereby eliminating a due to the fact that the LSS rulemaking the three-year schedule in the NWPA. significant amount of delay:

For these reasons, the Commission does will remove document discovery as an The Commission believes that any obstacle to timely completion of the not believe that p.isputes over written

• docum~nt management system for .the interrogatories will "plague" the boards, HLW proceeding by providing relevant HLW proceeding must meet all of these documents well in advance of the or lengthen the licensing process. objectives in order for the Commission
• The industry argues that system license application. As further stated bv to meet the NWPA schedule, while still this commenter-
• failures will trigger action to bring the providing for a high quality review of entire licensing process to a halt. The the license application. No other Potential parties will have access to the Commission does not anticipate that the alternative, including the industry LSS well in advance. of the time for LSS*will be unavailable for critical microfiche proposal, will_ acc*omplish. . sublirltting requests for a hearing. Thus, the periods or lengths ol1ime. DOE will this. *
• time needed for prospective parties to digest design and develop the LSS well in pertinent information will not become a As stated by the National Congress of critical path matter because it should be advance of the license application. This American Indians (NCAI) in its review largely completed before the prehearing period also includes development of a of the benefits ofthe LSS- process begin!!, Moreover, all hearing prototype system, as well as testing of requesters should be better informed with the LSS before it becomes operational. The LSS benefit which is vitally important to potential inlerveno~nd of no interest to respect to the subject matter, and they should Furthermore, the DOE design, the industry-is its potential to facilitate the* . be able to frame meaningful and material development, and testing program will thoroughness of program reviews. Unlike the issues for litigation. *** Finally, the be conducted with input from NRC and nuclear industry, Indian bibes, states and ' establishment of the Ji're-License Application other affected parties. The Commission other potential iritervenors view the NRC Licensing Board to hear and rule on believes,that the design, testing, and licensing for a repository to be more than a document production.controversies should development process will eliminate the troub!esome*procedural hoop through which assure that the delay attendant to legal major causes of system failure before DOE must jomp on itf way tinepository posturing over da,cwnent production will not waste acceptance. . impact the hearing schedule. In sum, the the hearing process begins.

In summary, the Commission does not Indian tribes, states, local governments and proposed regulations would* *

• remove citizens' organizations that might become one of the greatest causes of delay from the agree with the industry opinion that the -NRC adjudicatory hearing process.

LSS*would add time to the licensing lntervenora in that process have a responsibility to their respective constituents The DOE benefit-cost analysis process. The staff continues to believe to see that the resolution of those questions lit indicates that approximately $ZOO that the LSS is the best alternative for . done as meaningfully and correctly as providing a high quality and efficient possible. In other words, these entitles' million would be saved for each year of review of the DOE license application primary Interest In this entire program-one licensing delay eliminated.due to the within the schedule mandated by the which is manifestly consistent with the * . *. LSS. The final rule establishes NWPA. As noted above, this will be general public interest-is to make sure that- procedures for the HLW, including a accomplished through- the Commission's final determinations in this model hearing schedule, that will allow

• Eliminating the most burdensome matter are as nearly correct as possible. . the Commission to reach a decision on and time-consuming aspect of the To discharge this responsibility, wliich Iii .- * . the construction authorization within current system of document discovery,- also mandated by the Nuclear Waste Policy. . the timeframe specified in section 114(d)

Act ("NWPAII) with respect to the host state of the NWPA. However, even if the i.e., the physical production of

• and any affected lndian*tribe, they must be
• documents after the license application intimately involved In the review of the . process were to take up to one-third has been filed-because the LSS will program. To effectively participate in longer than the final rule envisions, the provide for the identification and program reviews, the prospective intervenor& LSS would still result in eliminating submission.of discoverable documents must have excellent access to the information substantial time from current licensing before the license application is base the program is using. They do not now practice. Under these circumstancs, the submitted: have even marginally adequate access to that benefits of the final rule would exceed
• Eliminating the equally burdensome information. The LSS-even a flawed, the costs of implementing the LSS.

and numerous FOIA requests for the incomplete LBS-promises to vastly improve Moreover, the Commission is pursuing same information that both DOE and th_e that access.

• still other methods for streamlining the NRC wilfsurely receive before and after NC.AI concluded that-
• licensing J>rocess, such as using 2-SC-31

PART 2 STATEMENTS OF CONSIDERATION* rulemaking to resolve substantive an Impact on the schedule of .the the projected costs were. expressed in licensing issues before the license adjudication.

• 1988 dollars, so were the expected application is submitted. NCAI, commenting on the full text benefits. Therefore, the conclusions of The second part of the industry search capability of the LSS, stated- the analysis would be the same whether comments on the costs and benefits of 'fhe most important aspect of that access is in constant or adjusted dollars. Finally, the LSS is the adequacy of the DOE the proposed full-text search capability of the the Commission does not agree with the benefit-cost analysis. The industry does LSS. That is where the nuclear industry's industry statement that the LSS is a not believe that the DOE analysis is alternative, a microfiche-based system, falls "revolutionary" system. There are many adequate for a number of rea.sons, far short of what la needed. The nuclear successful commercial information primarily because the DOE analysis did industry would Implement an electronic
• h D' I index only to the relevant Information, which management systems sue as 1a og, not consider alternatives to the LSS would be stored end provided in microfiche LEXIS, and Westlaw that provide full such as the industry microfiche &);stem. form. Unfortunately, the uaefulneaa of such text search and retrieval of millions of
• In addition, the Industry notes that the systems is far too sensitive to the quality of pages. The U.S. Congress also has a estimated $200 million cost is only the indexing. Particularly with respect to . data base (SCORPIO) that contains projected over a ten year period, and the subject descriptors or abstracts, there needs substantial legislative material in cost Is only presented in 1988 dollars. to be near-perfect correspondence between searchable full text.

Finally, the industry claims thal the size, the thought processes of the Indexer and *seventy percent of the $200 million

                                              .those of the subsequent searcher In order for*

• complexity, and "revolutionary" nature the latter.to find material* In an Index-only*'., cost for the LSS is for the labor of the LSS will significantly escalate the. system. . * * . , *. associated with assembling and

.costs of the system. Full-text search, on the other hand, . organizing the documents, converting In response, the Commission notes provides much greater power and flexibility them to electronic format, and preparing that the scope of the DOE benefit-cost in accessing relevant lnfomiatlon. Surveys bibliographic headers. However, much analysis was determined in reference to cited by the NRC staff in support of the LSS

• of the cost associated with these the objectives oJ the LSS identified rulemaking consistently showed greeter activities will be incurred, in any event, earlier-facilitating the discovery and* accuracy and efficiency ofeearching'in full. as part of the records management text plus header systems-such as iii review of relevant documents. The staff,. envisioned for the ~relative to other function for the repository; including the DOE, and other participants on the alternatives. costs for checking the document negotiating committee !lid not believe As noted by the State of'Nevada in its conversion for completeness and that any alternative other than an accuracy. Therefore, the Commission electronic full text search system could review of the industry proposal, the does not believe that the $200 million satisfy these objectives, and thereby system the industry recommends-- cost accurately represents the allow the Commission to meet the would not more greatly assist the incremental cost attributable to the full NWPA schedule, while still providing Commission In meeting its congressional time text search capability of the LSS.

for a high quality r.eview of .the relevant goals, and would not provide the parties with Rather, the $200 million includes.. costs licensing information. Therefqre, the effective and efficient document discovery.. *.** *that would be incurred in any system of

                                             . Most importantly, it would not give the *

• DOE did not evaluate the benefits and *. Commission .the .commensurate higher level . :* records selected by the. agency for cost of alternatives that did not include
• of confidence that all lBBuea have been fully * . . , *storing and. relrieving do~ents .

*an electronic full text search capability      explored and that the public* health and ..            pertinent 1o the HLW proceeding.

of the documents in the system. safety will be protected before the . . In:addition,* the LSS.cost projections Although the industry microfiche . Commission arrives at its construction ere sensitive to the actual volume of alternative might provide for the authorization decision. information to be entered and to the collection of relevant documents in Furthermore, the State of Nevada processing coats per page. Significant advance of licensing, it does not provide believes that the industry'microfiche cost reductions may be achieved for the electronic full text search within alternative "fail[s] to take into account through competitive procurement'of data those documents, such as the 7000-page the fact.that any other system, either, entry services. Cost reductions may also Site Characterization Plan. The hard *copy or the microfiche }lased be realized by scaling down the Commission does not believe that the system which they [the industry) universe of documents to be entered into mere availability of documents in hard espouse, would be as labor intensive, the LSS, as discussed below. In light of copy or microfiche without electronic potentially more time consuming, the fact that th'e elimination of even one . full text search capability will permit an probably unwieldy, and more likely than year of licensing delay by use of the LSS adequate substantive review of the not would involve as much cost as the would result in a savings of

• documents in the HLW proceeding by proposed LSS." For example; a approximately $200 million, the cost of the staff itself or any other party, nor microfiche data base would have to be the LSS is reaoonable. In addition, the will it permit the hearing to be duplicated for each potential party as projected $200 million cost over ten
• completed within the NWPA timeframe. well as for each public document room.. years is less than. three percent of the For example, in the 18-month period The latter, in particular, wt>uld*require.
• total annual DOE budget for the high-following submission of the license substantial additional physical space level waste program.

application, the current schedule call11

• and personnel to oversee the microfiche Topical Guidelines. Several of the for the NRC staff to review the library. comments, explicitly or implicitly,
• application, lo prepare its Safety The DOE benefit-cost analysis was addressed the size of the data base that Evaluation Report, and to evaluate and only projected over a ten year period* would result from the use of the toJJical respon.d to contentions proffered by the because that period corresponds to the guidelines for determining what*

parties in the hearing. The LSS furnishes period where the major costs of system documents must go into the LSS. One an important tool for the staff to use to design and development, and document

• commenter, the former NRC trial ensure that its review is both timely and of entry, as well as the benefits the LSS, counsel, recommended that reasonable
• comprehensive, and will enable the Staff will be realized, i.e., from the pre-license limits be established on the scope of to complete its revjew of both contested application phase to the decision on the document production, for example, and uncontested Issues without having construction authorization. Although, excluding documents concerning 2-SC-32

PART 2 STATEMENTS OF CONSIDERATION alternative sites or limiting the that the topical guidelines will not be construct a high-level waste repository. documents to those produced after the used for determining the scope of The negotiators to this rulemaking have 1982 enactment of the'NWPA, or to an admissible contentions in the HLW made a number of improvements to our earlier date when the primary research licensing proceeding.

• existing procedures. However. more and development work being relied on Morever, there ere other possibilities improvements may be necessary if the by DOE was completed. According to for ensuring that the document -* Commission is to meet the tight this commenter, meaningful limits on produc:,tion requirements do not become licensing deadline established by the document production should reduce the unwieldy. The rulemaking on the Nuclear Waste Policy Act of 1982, as cost of, and the potential for delay in the Commission's NEPA responsibilities will amended. By publishing this rule, the use of, the LSS: and such limits may well specify many of the areas that will be Commission is not ruling out further provide the type of alternative sought by outside the scope of the hearing. After changes to its rules of practice, including Commissioner Roberts. Limitation of the this rulemaking is finalized, the further changes to the rules contained in topical guidelines to the Yucca Commission could amend the topical
• the negotiated rulemaking.

Mountain site was also recommended guidelines accordingly. Until these The industry comments on the by another industry commenter. This issues are resolved, the identification proposed rµle contained se_veral commenter also recommended that the

• and loading of selected categories of additional recommendations In this scope of documents should be further documents could be postponed. In area. These same recommendations limited to the documents supporting a effect, priority would be given to the were also included in a memorandum license application. Identification and loading_of documents that the induatry originally presented to The topical guidelines were partially directly relevant to the Yucca Mountain the negotiating committee on the LSS modeled after the Environmental site, DOE contractor reports, or rule. Many of these recommendations Assessments prepared in connection documents generated after DOE began were addressed by the negotiating with the DOE site selection process. The investigations at Yucca Mountain. The committee and incorporated into the topical guidelines ere necessarily broad, Supplementary Information to the proposed LSS rule, although not always reflecting a concern by several proposed LSS rule stated that the LSS in the exacfform proposed by the participants on the negotiating Advisory Review Panel may develop industry. The revisions to the rules of committee that documents related to recommendations to the Commission on practice proposed in the industry potential licensing issues not be
• whether particular categories of comments on the LSS rule are those excluded from the LSS until the documentary material [e.g., those limited revisions that were not fully adopted by Commission determined what would be by date or subject) should still be the negotiating committee. The industry the permissible scope of substantive included* within the topical guidelines. recommendations are as follows-licensing issues. As noted* by the
• The NRC LSS InteJ."Dal Steering
• Establish.a new threshold for Commission in 'the Suppleme.ntary Committee will develop a list.of.. : contentions. According to the industry Information to the proposed rule, the priorities; as well as potential- "NRC adjudicatory decisions have topical guidelines will not be used for
• amendments to the topical guidelines, in allowed the admission of contentions the purpose of determining the scope of preparation for discua11ion with the other with no foundation and no aemblance of contentions that can be offered in the* affected participants. factual support." Accordingly, the HLW proceeding under § 2,1014. On a final point, the Commission industry recommends that the NRC Participants on the negotiating disagrees with the commenter that requfre*that a party demonstrate that committee fully agreed with this recommended limiting the ~ta base* to there is a genujne* and substantial Issue statement. As noted, their concern was only documents supporting the license of disputed fact requiring a hearing-for to ensure *that documents on potential.
• application. This would eliminate many
• its resohition. Thiil *tssue received*

licensing issues were not prematurely of the documents aveilable*through the extensive consideration by the

• excluded. existing discovery- process,, thereby negotiating i:ommittee.*Many of the The Commission is sympathetic to the depriving parties of documents that they participants on the committee did not need for excludjng material that is.not would normally have access to under agree that the industry position reflected relevant-to the licensing of the likely the Commission's current rules. More NRC practice since 1980, nor did they candidate site for the repository. important, it would deny DOE and the believe that a higher standard for Inasmuch as the existing scope of the NRC staff comparable electrqnic access_ contentions was necessary to exclude topical guidelines [many of which are to the expected numerous technical "frivolous issues," particularly in light of specifically limited to the Yucca documents prepared by Nevada's the early availability of information Mountain site) was developed as part of contractors on which the state 'will base through the LSS. Furthermore, although the consensus process on the entire its case. the final LSS rule does not include the rulemaking, the staff believes that a Non-LSS Provisions. In addition to the standard proposed by the industry, the reduction in scope should be discussed provisions in -the proposed rule that . final rule does require that.the petition by the negotiating committee or its concerned the development and for intervention include a party's successor. The Topical Guidelines are implementation of the LSS, the final rule contentions, which must refer with not cast in stone. They are to be set also contains several revisions to the
• particularity to the specific documentary forth as a Regulatory Gulde developed
• rules of practice that are not directly material or absence thereof that by the NRC staff, rather than as pert of related to the LSS, but which should provides the basis for the contention; the regulationa themselves, and thus ere also provide for a more streamlined and.the speclfic regulatory or statutory to be accorded lesser status end legal licensing process than the. current requirement to which the contention is effect. The Topical Guidelines set forth licensing procedures. However, the relevant. This provides a basis on which later in this Supplementary Information Commission is committed to do to reject clearly frivolous contentions.

are interim guidelines to be used until a everything it can to streamline its ..

• Moreover, contentions which rely on more precise set Is lsaued In an NRC : licensing process and at the same time incorrect facts can be .tested through Regulatory Guide. In either case, the*..* . conduct a. thorough safety review of the :existing summary dispoation pr~cedures Commission would again emphesiz~,. *, .. Department ofEnergy'li:appllcation,to :_. at-the outset of the hearing.*. : * .*
• 2-SC-33

PART 2 STATEMENTS OF CONSIDERATION As part of its efforts on regulatory days after the issuance of the NRC Staff The Commission does not agree that reform, the Commission issued a Safety Evaluation Report (SER) must

• discretionary intervention "does not proposed rule on July 3, 19B6, that would include, in addition to the usual factors serve the public interest" or amend certain provisions of its rules of for late-filed contentions, a showing that "complicates pre-hearing procedures,"

practice, 91 FR 24365. The draft final the contention involves a significant

• and recommends against removing such rule on regulatory reform addresses safety or environmental issue or raises a discretion from the licensing boards.

standards for the admission of material issue related to the The Commission's licensing boards do contentions, the elimination of performance evaluation anticipated by follow judicial standards for unnecessary discovery against the NRC 10 CFR 60.112 or 60.113. intervention. However, the Commission staff, the use of cross-examination

• Discovery. Citing as an example the does allow discretionary.intervention plans, and the timing of motions for local rules of orily one federal district under certain circumstances, and has summary disposition. Section 2.1000 of court (out of 101) the industry proposed established spiacific factors to guide-a the LSS rule cross-references any that limitations be placed on the number licensing board's determination on sections of general applicability in of depositions and the time period whether discretionary intervention subpart G of Part 2 that will continue to during which those depositions may be should be permitted. Portland General apply to the HLW licensing proceeding., taken. Section 2.1018 of the final rule, Electric Co. (Pebble Springs Nuclear As such, all but one of the provisions in and the model schedule in the
• Plant, Units 1 and 2), CU-76-27, 4 NRC the draft final regulatory reform rule Supplementary Information of the final 610, 616 (1976). Since Pebble Springs, (Section 2.714, which requires rule already limit deposition discovery discretionary intervention has been.

contentions to show that a genuine to approximately 21-months, :X-he Board . authorized orily four times, and in one of dispute exists on, an issue of law, fact, or is also authorized by the rules to prevent those instances, the grant of-intervention policy), if adopted, will automatically abuse of the disc9very process. Further

• was later vacated as*mooL It is also apply to the 1-ll.W proceeding. The LSS restrictions on deposition discovery_ worth noting that, because the industry's rule contains a new provision on were given extensive consideration interest in the JHLW proceeding is contentions, Section 2.1014, and during the negotiation. The magnitude of economic, it may not satisfy the consequently Section 2.714 would no this proceeding and the need for Commission's ilraditional, judicial test longer apply to the HLW proceeding. meaningful public review of health and for standing and thus might well have to The Commission intends to further safety issues, however, make arbitrary*
• rely on the Pebble Springs doctrine to evaluate the nee*d to.extend the limits on depositions, imposed by.rule, i participate in the proceeding.

"genuine issue of fact" standard to the inappropriate and unwarrant.ed. * * *' i, Affirmative case on contentions; HLW proceeding after its review of this The industry also states that *the

• The industry_recommends that the provision in the draft final regulatory Informal discovery provisions contained Commission require that a party reform rule.
• in § 2.1018(a)(l) of the final rule will sponsoring a contention present an
• Late contentions. The industry enable a party to "deluge DOE with affirmative evidentiary case for that comments state that current NRC Informal requests for Information not contention. Under NRC case law, an
• practice is "overly liberal in admitting available in the LSS." The informal . intervenor does have the burden of contentions filed after the period for discovery procedures represent a going forward, but may do so* by either initial definition of contentions." The . method to allow parties.to the hearins to direct evidence.or by cross-examination, industry recommends that a new obtain the type of Information normally as to 1he issueo raised by the standard be established which would gathered through interrogatories (names* intervenor's contentions. Philadelphia require an evidentiary showing that: (1) of witnesses, nature of testimony, etc.) . Electric Co. (Limerick Generating There is significant new information through a less onerous and less*time- Station, Units 1 and 2), ALAS-262, 1 which would require a modification in consumiilg method than the use of NRC *153, 191 (1975). The Commission facility design/construction to protect written interrogatories, As such, it will believes that this more substantive the public health and safety; and (2) be confined to a narrower band of proposal, which ls beyond the scope of such modification would substantially Information than implied in the industry
• the i~stant rulemaking, .warrants further enhance such protection by improving commenL Abuse of the informal consideration later, at the same time the overall safety. discovery process can also be prevented Commission addresses the ?'.elated issue
• The industry fails to substantiate Its by the Pre-License Applicatiqn Licensing of whether the threshold of contentions*

charge that the adjudicatory boards are Board or the Hearing Licensing Board should be raised. too liberal in admitting late contentions. under§ 2.1018(c) of tlie final rule.

• Seriatim hearings. The industry A review of all such decisions since 19BO However, in order to minimize the recommends that the Commission direct reveals that less than 25 percent of late potential for abuse of the informal the licensing board to resolve.

contentions have been admitted. Of discovery process, i 2.1018(a)(1) has contentions on an ongoing basis and those, the great majority were based on been revised. to include examples. of the . that internal agency appeals for these very special circumstances and thus* type of material that.will be available . decisi9ns need not. await resolution of understandably admitted (e.g., new through Informal discovery. *thda~t group of issues. As noted above, TMl-accident-related regulatory

• Intervention. According-to the the proposed LSS rule already requirements, prior unavailability of industry, the Commission "has allowed dral_Ilatically alters existing practice by emergency plans, discovery of its licensing boards to grant intervention requiring (rather than prohibiting) potentially serious safety and quality status to parties that failed to meet appeals from certain types of assurance problems.) Thus, the judicial standing requirementa," ,
• interlocutory orders, such as rulings on industry's premise is unsupported. Accordins to the indus~ this the admiesibility and amendment of ,

Nonetheless, the negotiating committee * "discretionary intervention" tends to . contentions and motions for. summary deliberations on this issue resulted in "add additional parties to the . disposition, to be filed within ten days new standards for certain types of late proceeding, does not serve the*public (rather than at the conclusion of the contentions. Any petition!! to amend or interest, complicates pre-hearing proceeding). See § 2.1015. Further, under add contentions made more than forty procedures, and should be removed." : long established agency precedent, 2-SC-34

PART 2 STATEMENTS OF CONSIDERATION rulings disposing of a major segment of the parties. We do not like every aspept of * 'Identification and prioritization of a case are immediately appealable. the draft rule, but we certainly understand the LSS design and development issues Negotiating Committee Review. The the rule and its deril'ation Infinitely better that need to be addressed with DOE; State of Nevada, the National Congress than we would had we not been able to

• Identification and prioritization of of American Indians, and Lincoln participate so thoroughly in its initial drafting, All those representing intervenor the issues that need to be addressed for County, Nevada submitted written implementation of the LSS within the
• Interests yielded on many points in the comments on the public comment negotiations to accommodate the positions of NRC, including a delineation of the role letters. The State of Nevada supports the nuclear industry. We would not have of the LSS Administrator vis-a-vis the the LSS rule as proposed. According to done so in any case if we had -known that the Steering Committee and the affected the State,."[t]he rule is the product of a Industry ultimately would not yield to NRC Offices; very successful negotiation process, accommodate the LSS concept ae a whole. *
• Preparation of a draft Memorandum during which all major interests, except The*BBme considerations which led the of Understanding between NRC *and the utilities, engaged in significant Commission to undertake thia rulemeking by DOE that' would delineate the compromises. The give and take resulted negotiation-that tha results of more responsibilities of the respective In a proposed electronic discovery and thorough participation would yield a better agencies in regard to the LSS; motions practice system which will and ore acceptable draft rule-should .

enhance the parties' ability to fully similarly lead the Commi11sioo to reject the

• Preparation of a draft charter for the inform the hearing panel, and thus the nuclear industry's position in promuJsa~ LSS Advisory Committee; Commission. on the difficult issues the fmsl rule. The propo11ed sy11tem is
• A schedule for impleme~tation of involved in licensing a repository. It will admittedly elaborate and costly, blit It . the plan; therefore asaist in meeting the promises to lead to more efficient and
• Proposed amendments to the topical effective management of the vast quantity of Commission's ultimate health and safety Information required for repository licensing guidelines.

responsibility." Furthermore, the State is and more meaningful participation In this The CommiSBion would emphasize convinced that the proposed rule will important sovernment process. The that, in order t9 accompllsh the LSS provide a greater poBBibility that the Commission should oot*be ov.erly*reluctant ti>" objectives, DOE must have the LSS Commission can.meet its congressional . engage In a bit of infonoation age pionelll'ina, operational as far in advance of the time goals, or at least reduce the time es this Is unquestionably the direction lo submission of the license application as which would be necessary to reach a which information manqement in complex feasible. The Commission is somewhat

• construction authorization decision than government regulation and lifigation ia goills;, concerned over the DOE statement in its by using either traditional hard-copy The costs are not out of line relative ti> comment on the proposed rule that-discovery, or the industry's proposed overall pr.ogram costs.

microfiche based system. The State also The January 1991 date cited for availability Lincoln County, one of the members of of the Licensing Support System * *

• ie no emphasized that it had "agreed to the Nevada local government coalition longer a realistic date. Based on the findinss relinquish traditional hard copy on the negotiating-committee noted of the preliminary desisn effort to date and discovery rights, and in retum received that- ' on the bell available estimatea of an what we are confident la a vehicle .
• anticipated* IIChedule of procurement for which will allow for a more enhanced* The utilities appear to be requesting . system hardwere and aoftware components, use of discovery, and thus a more rulemaking and other administrative relief to elements of the ayetem will be available in expedite licensing In a manner which mey late 1992,*with comprehensive capabilities effective means of participatina in the jeopardize the full and effective participating licensing process, and assisting the rights of potentially affected partie1. The now estimated to be available in early 1993, Commission in fulfilling it[a] ultimate NWPA provision calling for a Uu'ee-year . *The Commission realizes that the responsibility; that is, a construction licenalng period *was enoush of* time schedule for submission of the DOE authorization decision-based on a full concession for the uWltiea. Any further
• license application may also be delayed and complete airing of all of the conceaslon, for the sake of expediency may complex .and novel technical iasµes Th~ National Congress of American cause harm to the balluice of affected parties.

beyond the 1995 date now anticipated by DOE. However, unti* such a schedule Coordination. On January 11, 1989, the adjustment is an actuality, DOE, with Commission voted to establish an the assistance of NRC and the other Indians continues to support the LSS, affected parties, Dlust make their best independent Office of the LSS because the benefits to be derived- Administrator reporting to the efforts to see that the LSS is operational primarily in the form of improved access as soon as practicable before the llcense to program information-will greatly Commission for policy direction, and to the Chairman for day-to-day , . application is submitted. In this rega~ facilitate effective participation in the management supervision. ~ addition, DOE, NRC, and other parties subject to program on the part of Indian tribes and the Commission renamed the current the rule must now begin preparation for other potential intei'venors. The cost of the system, while high, is justified by the NRC LSS Negotiating Team- as the NRC . compliance with the document LSS Internal Steering Committee submission requirements in 12,1003;* benefits and is an insignificant fraction effective immediately. The Steering Furthermore, the LSS Administrator's of overall nuclear waste program costs. evaluation of DOE compliance, pursuant NCAI supports the conclusion of the Committee is to serve as the focal point within the Commission to identify, to I 2.1003(h)(Z), begins six months* after Department of Energy and the NRC Staff his or her appointment. develop, and coordinate internal that the LSS will significantly shorten the time required to license a repository. requirements and procedures, and to Additional Views of Commlsaloner Cuztl~ Flll'.thermore, NCAI-

• represent NRC's interesta*in the I.SB. In order to carry out these responsibilities, For a number of reaaona, discuased in more reaffirmed Its commendation of the and to prepare for-coordinatioD wlth detail below, I have significant reservations Commission for undertaking this rulemuking about proceedins at this point .with the so-DOE on the design and development of called "non-LSS" portion of this rule, wherein by negotiation and for Including NCAI to the LSS, the Steering Committee has represent national Indian interests in that the Negotlatins Committee hB11 recommended negotintlon. The result of the lengthy begun the preparatioD of a ~aft LSS extensive changes to our Part 2 procedures, negotle tlon process necessarily repre11ente e implementation plan. The plan will as those procedures will apply to the grent deal of compromise on the part of ull address the following- Department of Energy'11 eppllcBtlon for a 2-SC-35

PART 2 STATEMENTS OF CONSIDERATION construction authorization for the high-level from the Negotiating Committee about the documents in the proceeding. Generally, waste repository.

• purpose and intent of the rule that hes been the procedures in the new Subpart take First, it does not appear to me thn t the proposed for our consideration. We are Ill- precedence over the provisions of original charge to the Negotiating Committee served by the NegotiatiDB Committee's general applicability in 10 CFR Subpart envisioned that the Committee would inability or unwillingness to re1pond to address, In a wide-ranging manner, the so- reasonable questions about the meaning and G. However, § 2.1000 cross-references called Pert 2 procedural provisions thel will purpose oJ key provisions in this 1:We. 1 any sections of general applicability in govem the high-level waste proceediDB, Fourth and finally, there are a number of Subpart G that will continue to apply to ellcept lo the extent that ch81J8e11 In theae procedutal change11 that go beyond, or the HLW licensing proceeding. The final provisions proved to be necessary for the involve chanaes in, what the Negotiating rule applies only to the HLW purpose of implementing the Licensing Committee has proposed that warrant proceeding, and does not apply to Support System (LSS). The rule before us consideration (see, e.g., Memorandum from licensing proceedings for any other type_

Includes a number of provisions that are Christine N. Kohl to Willlam C. Parler, of facility or activity licensed by the neceeeary to Implement the J.SS; but It also January 19, 1989; SECY-89--023, Includes a number of "non-1.SS" provision* Commission. The rule will be applicable "Con11lderatlon of Revisions to the that ere unrelated to the LSS and that, In my Commission', Rules of Practice In Order to . to all parties to the HLW licensing judgment, go far beyond the ucope of the Further Streamllne the High-Level Weate

• proceeding regardleaa of whether a Committ1¥1'B charge. LicenllingProce1s!', January Z6, 1969).1 am
• particular party was a member of the Second. we have not bed e sufficient pleased that theae additional changes will be .negotiating committee.

opportunity to reflect upon the "non-LSS" coming to the Commission shortly for our procedural changes that have been consideration and I hope that we can move Section Z,1001 Definitions propoeed-to ensure that the procedures ere forward expeditiously with our deliberetlim11 Section 2.1001 sets forth the clear end ambiguous and to reach II decision on these additional changes. ~t It 11eems to ee to whether, es a matter of policy, the definitions of terms used throushout

• me that It would be fer preferable to make approach reflected In the proposed these changes all at one time and In a single Subpart J. These definitions will be procedures 11hould be endoraed. My own package, where we can consider the policy discussed with the relevant sections of view is that there 11 considerable ambiguity. matten related to our HLW procedure11 in a the final rule..

reDected In pert by the apparent lack of comprehensive end coordinated way, rather consensus on key issuee that emerged In the Section Z.1002 High-level Waste. than through the blfurcat!ld approach that we February 7, 1989 Commission meeting, about ere now taking. Licensing Support System the meaning of certain Important provision1. For the foresoing reasons, I would Section 2.1002 describes the Pun>ose Third, my concerns In thiuegerd have disapprove the "non-LSS" provisions of the been heightened by the responses that we and scope of the LSS. The LSS is rule (section11 2.1014-2.1023, 2.714, 2.722, 2.743, intended to provide full text search recently received from the Negotiating end 2.784, ea well ea the toplc11l guidelines Committee memben to the questiou that I and the model timellne). I would approve capability of, ll>r easy acceaa to, the posed on February 24, 1989. In abort. with the those provlaiODI of the rule that.are directly "documentary material" of DOB. NRC. exception of tbs Industry Coalition, the

• related to lmplem11ntaUon of the.~ (2.1000- other parties to the LHW licensing
• Negotieti1J8 Committee members and the lead** 2.1013J: proceeding; government entities convenor end facilitator have Individually participating In the HLW proceeding as declined to answer the questions. suggesting The Ymal Rule "interested governmental participants" that Inquiries about the purpose end intent of The final rule adds a new Subpart J to under 10 CFR 2.71S(c); persona who this rule aomehow threaten the Integrity of 10 CFR Part Z setting forth the qualify ea "potential parties" under the negotletiDB proce11 and will lead to the collapse of whatever consensus hes been procedures that govern the I Z.1008; and their contractors ("parties,"

achieved. Commission's HLW licensing * "interested govemmental participants," In posing these questions. It was not mf proceeding, including the uee of the ~ *. and "potential parties," -will be . Intent to plow new around or raiae new . for the 1ubmiasion*aud management of . . collectively refemd to hereinafter as issues that go beyond the topics that ere documents in the proceeding. ~e ~al "LSS participBDts"). LSS participants, addreeaed In the proposed rule recommended rule applies only to the HLW *: ** *. .. must ensure that their contractors, by the Negotiating Committee In SECY proceeding, and does not apply* to

• consultants, grantees, or other agents, 027. Indeed, In every Instance, the question, li!)ensing Involving any* other type of comply with the applicable concern the purpoae, the Intent, and the.

meaning of the procedural provtalo111t facility or activity licensed by the requirements of Subpart J. contained within the four cornel'fl of this . Commission. The rule will be applb;able . . For the*purposes of the information rulemaldns packoae and involve matters to all parties to the HLW licensing * * *

• that will in the LSS, "documentary that, In my. judgment, need, to be clerifled if proceeding regardless of whether a material" means any material or*other' our objective here ia to have a rational, well. particular party was a membeJ,' o.f the. information generated by or In the understood set of procedures to govern the . negotiating*committee. No substantive poasession of an LSS participant that is high-level w&11te adjudicatory proceeding. If changes have been.made to ~e rule BB relevant to, or likely to lead to the these matten were discussed end addressed proposed.
• discovery of information that is relevant by the Negotiating Committee-and 11 consensus achieved-then the response Section 2.1000 Scope of Subpart . to, the licensing of th~ likely candidate should require no further negotiation. A site for a geologic repository. The simple reference to the text of the rule or to The final rule establishes a new identification of material that Is within the minutes of the negotiations would 11ufiice*. Subpart J In 10 CPR~ 2 setting forth the universe of "relevant to, or likely to On the other hand. If these matters did not .* the procedures that govern the . lead to the discovery of information that receive the attention of the Negotiating . Commission's HLW licensing is relevant to, the licensing of the likely Commltt~r a consensus does not exist- proceeding, including the use of the LSS candidate site for a geologic repository:*

then*in my judgment that should give us for the submission arid management of will be detennined by the topical pause about proceeding with changes that ere guidelines set forth in this not clearly understood. If we have any hope of meeting the three-year statutory 11chedule 1 Indeed, the poeilion token by the.Ne1otlati1111 Supplementary lnfonnation. In Committee in reoponae to the queatlona lhet have determining which documents must be for the high-level waste proceeding, I think been poaed about the pwpoae and lnlenl of the rule we ahould clear up these ambiguities now. leech me to queatlon !he wildam of rel)'lns ou lhe placed In the LSS by a LSS participant; Whether a consensua was achieved or not. negottated rulemaJdna ~.. for ful'!'9 r u l ~

• the document must fall within the we ere nevertheleBB entitled to e response
• lnlUaUvea.
• definitic:,n.of "documentary material" In 2-SC-36

PART 2 STATEMENTS OF CONSIDERATION § 2.1001, I.e., it must be relevant to, or an ASCII file, a bibliographic header, The requirement applies regardless of likely to lead to information that is and an image for all documents whether any final document ultimately relevant to, the.licensing of the likely generated by the LSS participant or its emerges from the LSS P!lrticipant's candidate for a geologic repository. contractor after the LSS*participant decision-making process. A Therefore, a document must not only fall gains access to the LSS pursuant to

• determination not to issue a final within the topical guidelines, but also either§ 2.1008 or§ 2.1014, Submission of document, or allowing a substantial have a nexus to a geologic repository. It these documents must be made period of time to elapse with no action is also the Commission's intent to issue reasonably contemporaneous with their being taken to issue a final document, these topical guidelines as an NRC creation. For documents generated or shall be deemed to be the completion of Regulatory Guide. The topical guidelines acquired. before the LSS participant .. the decision-making process. If a set forth lster in this supplementary gains access to the LSS, the LSS decision is made not to finalize a information are interim guidelines to be* participant need only submit a header document to which there has been an used until a more precise set is issued in and an image for each document. The objection, the draft of that document an NRC regulatory guide. The LSS Administrator will be responsible must be entered into the LSS after the Commission expects all LSS participants for entering these documents Into the
• decision-making proceBS on the to make a good faith effort to identify LSS in searchable full text. DOE and document has been completed, i.e., the the documentary material within the NRC, the generators of the largest requirements of 12,1003 do not require a scope of§ 2.1003. However, a rule of volumes of documentary material, will LSS participant to submit a circulated reason must be applied to an LSS be responsible. for submitting to the LS~ . draft to the LSS while the internal participant's obligation to identify all Administrator ASCII files, bibliographic decision-making process is ongoing. In documentary material within the scope headers and Images of documents . addition, under § 2,1006(c), circulated of the topical guidelines. For example, within the scope of the topical drafts that are subject to withholding DOE will not be expected to make en guidelines. The format criteria for the under a privilege or exception other than exhaustive search of its archival submission and acceptance of ASCII, the deliberative process privilege (e.g.,

material that conceivable might be images, and headers will be initially attorney work product), are not required within the topical guidelines but has not established by DOE in concert with the to be submitted for entry in searchable been reviewed or consulted In any way LSS Advisory Committee established full text to the LSS under § 2,1003. in connection with DOE's work on its pursuant to proposed I 2,1011(e)(2), to As a general rule, all documentary license application. It is also anticipated be later supplemented as ri_ecessary by material is to be in the LSS in that the LSS Advisory Review Panel the LSS Administrator in concert with searchable full text; However, the rule established pursuant to § 2.1011(e), in the LSS Advisory Review Panel. provides for exceptions to this general evaluating the implementation of the The submission requirements of rule. Section 2.1003(c) addresses LSS, may make occasional * § 2.1003 generally apply only to final graphic-oriented documentary material recommendations to the Commission on documents, e.g., a document bearing the that.is not appropriate for entry into the whether particular categories* of

• signature of an employee of an LSS Licensing Support System in searchable documentary material (e.g., those limited participant or its contractors. However, full text. Graphic-oriented documentary by date or subject) should be irlcluded paragraphs (a) and (b) of § 2.1003 also *
• material is material that is printed; within the topical guidelines. require the submission of "circ,dated . * . scripted, handwritten, or otherwise Although the topical guidelines will guide the selection of relevant drafts" for entry into* the LSS. A *
• displayed in hard copy form, and la information for entry into the LSS, they "circulated draft" means a nonfinal capable of being captured in electronic will not be used for the purpose of document circulated for supervisory Image by a digital scanning device.

determining the scope of contentions concurrence or signature and in which Graphic-oriented material includes raw that can be offered in the HLW the original author or others in.the data, computer runs, computer programs proceeding under proposed § 2.1014. The concurrence process have non- and codes, field notes, laboratory notes, scope of contentions will be governed concurred. The intent of this exqeption maps, and photographs which have been by the Commission's authority under to the general rul~ or final documen~ is printed, scripted, handwritten or relevant statutes and regulations. to capture those documents to which otherwise displayed in any hard copy Section 2.1002(dJ-specifies that there has been an.unresolved objection form and which, while capable of being Subpart Jis not intented to affect any by the author or other person jn the . captured In electronic Image by a digital independent right ofa potential party, internal management review process scanning device, may be captured and interested governmental participant, or (the concurrence process) of an LSS submitted to the LSS Administrator in party to receive information or participant or its contractor. In effect, any form of image, along with a . documents. These independent rights the Commission and other government bibliographic header. Section 2.1003(c) consists of statutory rights under such agencies who are LSS participants are also addresses documentary material statutes as the Freedom of Information . waiving their deliberative process

• that is not suitable for entry into the Act (FOIA), or the N1,1clear Waste Policy privilege for these circulated drafts. The Licensing Support System in either Act, as amended, or rights derived from objection or non-concurrence must 'be Image or searchable full text. Such grant requirements such as those unresolved. Any draft documents to material shall be described in the between DOE and the State of Nevada. which such a formal, unresolved Licensing Support System by a objection exists must be submitted for sufficiently descriptive bibliographic Section 2.1003 Submission of Material entry into the LSS. Although many of the header. The timeframe for entry of to theLSS . LSS participants or their contractors do graphic-oriented material, or material Section 2.1003 sets forth the not have the same type of concurrence that is not suitable for entry in either requirements for the submission of process as DOE and NRC, the . image or searchable full text, will be documentary material by LSS Commission expects.all LSS participants established pursuant to the access participants to the LSS Administrator to make a good faith effort to apply the protocols in § 2.1011(d)(10). In addition, for entry into the LSS: LSS participants, intent of this provision to their submission of images will be determined excluding DOE and NRC, must submit document approval process. by the protocols on digitizing-equipment 2-SC-37

PART 2 STATEMENTS OF CONSIDERATION established by the LSS Advisory Review meet the three year NWPA timeframe subsequently added to the database Panel. .However; in any case, this type of for a decision on the issuance of a must be updated, ., documentary material ~ust be entered construction authorization, in the event*

• Where the ability to annotate a into the LSS after the principal of a contested adjudicatory proceeding. document record to show later use(s) as investigator decides that the data are in Although DOE may ultimately come into exhibits to depositions and testimony a usable form, including the completion compliance with the provisions of may be required at a later time.

of quality assurance procedures. The Subpart J at some point after the license **Section 2.1004(e) requires that.any access protocol should ensure that any application has been docketed under document that hes been incorrectly collection or "package" of documentary Subpart G, the Commission may still not excluded from the LSS must be

• material, as the term is used in be able to certify that the statutory submitted to tl1e LSS Administrator for

§ 2.1003(c)(3), which relates to a study,       timefreme will be met. However,                   entry within *two days of its should be submitted reasonably                  § 2.1003(h)(3)(ii) does authorize the             identification by the LSS participant contemporaneous with the completion of          Commission to specify the extent to               who is responsible for the submission of such a "package," including any quality         which Subpart Jwill apply if DOE later            the document.

assurance that may be required. comes into compliance. The Commission Section 2.1005 sets forth categories of is optimistic that the. effective

• Section 2.1005 Exclusions documents that are to be completely implementation of the rule proposed in Section 2.1005 establishes several excluded from the LSS, and 12,1006 uets this notice will allow the Conuniesion to categories of documents that do not forth the categories of documents that meet' the schedule set forth ~.section have to be entered into the LSS, either-may be withheld from entry into the LSS 114(d) of the NWPA. .
• under the requirements of I 2.1003 or on the basis of a privilege or exception. Section 2.1004 Amendments and under the derivative discovery:

The details of these provisions will be Additions requirments of§ 2.1019. These discu11sed below. This section provides for the addition exclusions include documents typically To ens1Jre that progress is made in to, end amendment of, recorda referred to as official notice material; designing, devefoping and loading the submitted by the LSS participants." '.fhe reference books and text booka;

• LSS, § 2.1003(h) provides for evaluations submitter has sixty days to verify administrative materials such as general of DOE compliance with the whether' a document has been entered distribution cover memoranda, budget, requirements of§ 2.1003 at six*month correctly in lhe pre-license application. finance, personnel, and procurement intervals. The DOE license application phase, and five days to verify correct materials; press clippings end.press cannot-be docketed under Subpart J, entry after the.license appplication has releases: junk mail; and classified thus losing the benefits of Subpart J, been submitted. Any errors in entry material. The scope of work on a unless the LSS Administrator certifies at
• discovered during the sixty and five day procurement related to repository siting, least six months before the license periods may. be corrected by the . construction, or operation, or the .
• application is submitted that DOE is in submitter*. After the time pe!,'ioli for
• transportation of spent nuclear fuel or .

substantial compliance with the. verification has run, .any errors may not high-level waste is not within the scope provisions of the* Subpart. Although be corrected by revising the original of these exclusions.

 § 2.1003(h)(1) requires the certification       document. Rather, the submitter must              Section 2.1008 Privilege decision six months before submission of the DOE license application, the a

submit corrected version to the LSS The submission of documents to the Administrntor,-with a separate Commission anticipates that the LSS bibliographic header'. Both the . . LSS is subject to the traditional participants will have-access to the LSS bibliographic header for the revised* privileges from discovery recognized in well before the license application is document and the or1girlal _document , NRC.adjudicatory proceedings, as well submitted. The LSS Administrator's must note that two versions of the as all the exceptions from disclosure

• decision on DOE compliance may be document are hi -the LSS. * * * *, ** contained in 10 CFR 2.790 of the
• reviewed by the Pre-License Application Section 2.1004 also addresses the Commission's regulations. These Licensing Board established pursuant to issue of updates of documents that are privileges and exceptions include the

  § 2.1010, if the Board receives a 'properly    already in the LSS. Updated pages must             attorney-client privilege; the attom~y filed petition. Under 12,1003 (a)(2) and        be submitted to the LSS Administrator              work product privilege, the (b)(2), LSS participants ere required to       for entry as a.separate document with a           government's deliberative process submit any documentary material                separate bibliographic header. The                 exemption, protection for privileged or .

generated or acquired before the LSS bibliographic header of the original . confidential commercial or financial participant is given access to the LSS document must specify that an update is information, and the protection of ("backlog"), no later than six months available. All the pages in a particular safeguards information. The Pre-License before the license application for the update will be entered as a single . . Application Licensing Board, pursuant repository is submitted. However, the document. to I Z.1010(b), will rule on any claims of Commission encourages LSS Section 2.1004 addresses amendments withholding based on these privileges or participants to submit this material for and additions to the documentary exceptions. AB in any NRC adjudicatory entry as soon as possible after they have material In the LSS. This section does proceeding, the Board may rule that the been given access to the LSS. not preclude the LSS Administrator from release of privileged or excepted In the event that the LSS making revisions to headers necessary material is necessary to a proper Administrator cannot certify DOE to maintain and enhance the usefulness decision in the proceeding, or may order compliance with Subpart J, DOE may of the header information. Such the diaclosure of a document under a either postpone the filing of the revisions would include the following- protective order. Section 2,1006[a) application until compliance is certified,

• Updating assigned subject index extends the deliberative process or can file*the license application for terms as the*these~ is enhanced and; privilege normally available to federal docketing under 10 CFR Pert 2, Subpart
• expanded. government agencies to state and local G. In the latter*event, the Commission
• Where a field containing pointers to *
• governments and Indian Tribes.

would note that"it will be unlikely to

• cross-reference related documents** a
• Safeguards information is .to be 2-SC-38

PART 2 STATEMENTS OF CONSIDERATION protected under the provisions of 10 access to the LSS. LSS participants will 2.715. Although § 2.1014(c)(4) of the CFR73.21. Subpart I of 10 CFR Part 2 be able to file an electronic request for proposed rule provided that the Hearing will govern the protection and paper copies of LSS documents from Licenslng*Board would consider pre-disclosure of any Restricted Data and their individual computer-facilities, and license application acceBB to the LSS as National Security Information during the also will be able to file an electronic . one factor in ruling on petitions for proceeding. The existence of any request for a fee waiver when intervention, this provision has been material of this type should be identified requesting paper copies of documents in deleted. Under§ 2.1014(c), the Board to the Licensing Board and the parties the LSS. This waiver is currently must still consider the nature of the pursuant to 10 CFR 2.907 and is not available to qualified persons or groups petitioner's rightunder the Atomic subject to the requirements of§ 2.1003. seeking a fee waiver for copies of NRC Energy Act; the nature and extent of the Accordingly, no headers need be documents who submit a written request petitioner's property, financial, or other submitted for Subpart l information. to the CommiSBion under the interest in the proceeding; and the Commission's Freedom of Information

• possible effect of any order that may be Section 2.1007 Access Act (FOIA) regulations in 10 CFR Part 9. entered in the proceeding on the Section 2.1007 establishes the The criteria In 10 CFR 9,39 would be petitioner's interest. Therefore, the provisions for acceSB to the LSS by the used to determine if the requestor
• Commission did not believe that pre-public and by LSS participants. In terms should be granted a fee waiver. Section license application access would have of public access, the NRC and .DOE will 2.1007(c)(4) would authorize the* any meaningful effect on the Board's' provide public acceSB terminals at their Commission to grant a generic fee determination on Intervention petitions.

respective Public Document Rooms at waiver to a qualifying LSS participant .Itshould be emphasized that a headquarters in Washington, DC, at after the initial request for a fee waiver petitioner must also satisfy § 2.1014(a)(2)

• NRC regional offices, and at various has been made.
• In regard to an admissible contention in locations in the vicinity of the likely Documents In the LSS will not be order to participate in the proceeding.

candidate site for the repository. In the considered NRC agency records solely An LSS participant's access to the LSS pre-license application phase, access to *by virtue of the NRC being the LSS obligates it to comply with the the LSS through these public access Administrator. However, any of those regulations in Subpart J, including terminals will consist of full text search documents that were generated by*or compliance with all orders of the Pre-capability of the full headers for submitted to the NRC as part of the License Application Licensing Board. documents in the LSS. The NRC and NRC's licensing responsibility for the DOE Public Document Rooms will repository will be NRC agency records.

• Section 2.1009 Procedures provide access, consistent with current As noted above, documents considered practice, to the paper copy or microfiche Section 2.1009 specifies the.

agency records may be requested under of the documents of that agency before procedures each LSS participant must a FOIA request to the NRC. Similarly, access to the LSS is available (currently follow to ensure implementation of the DOE records may be requested from. requirements in Subpart J, including

• projected for January 1992), Once the DOE under a FOIA request, and the LSS is operational, public access to the establishing procedures to ensure that records of any other governmental entity LSS headers will be available within the that may be obligated to provide documentary material is identi.fied and .

same timeframe that the headers and documents by virtue of a freedom of submitted for entry into the LSS. Each LSS documents are available to LBS information statute (e.g;, *a State agency) LSS participant must identify:a specific participants. In addition, copies of may be requested. It is anticipated that * .Individual as the tsS point-of-contact;

• specific DOE or NRC documents may be the public. availability of headers for This individual must certify, at six requested under the procedures of the LSS documents will facilitate freedom of month intervals, that all documentary agencies' Public Document Rooms and information requests and responses. *material for which the LSS participant is the FOIA regulations of the NRC, 10 responsible* under this subpart has been CFR Part 9, or DOE, 10 CFR Part 1004. Section 2.1008 Potential Parties . identified and submitted to the LSS.

These regulations provide for a ten day Section 2.1008 establishes the Section 2.1010. Pre-License Application response time to requests, 10 CFR 9.25(e) procedures for a person becoming a Licensing Board and 10 CFR 1004.5(d)(1), and the waiver potential party during the *pre-license of copying fees to qualified persons, 10 application phase, thereby gaining Section 2.1010 establishes an NRC CFR 9.39 and 10 CFR 1004.9(a). Public acceSB to the LSS during this *period. Pre-License Application Licensing Board access to the full text of all documents Upon a petition from "Un Interested to rule on.requests for access to the Lss* in the LSS, except for documents person, the Pre-License Application during the pre-license application phase, withheld from disclosure under section Licensing Board, established pursuant to and to resolve disputes over the entry of 2.1006, shall be provided after the notice § 2.1010, will determine in accordance documents and the development and of hearing is issued for the HLW with§ 2.1008(c) if the person meets the implementation of the LSS by DOE and licensing proceeding. DOE and NRC will . criteria in§ 2.1008(b). These criteria the LSS Administrator. The Board will ensure that adequate t_erminal acceBS consist of the factors for determining be appointed six months before access facilities are provided at the public intervention status under I 2,1014(c) or to the LSS is scheduled to become document rooms. the criteria in 10 CFR 2.715 for interested available. The Board possesses the Remote access to the LSS from governmental participation, both ali same general power as *other NFC individual computer facilities will be evaluated in reference to the topical Licensing Boards possess under 10 CFR available to LSS participants both guidelines set forth below. 2.718 and 10 CFR 2.721(d). In order to during* the pre-license application phase A grant of access to the LSS*pursuant gain access to the LSS during the pre-

and after the notice of hearing has been to § 2.1008 bsfore an application is filed license application phase, an LSS iBBued. The cost of the computerfacility does not carry a presumption that a participant must agree to* comply with and the telephone connect charge must potential party will be a'dmitted*as a all orders of the Pre-License Application be borne by the LSS participant. party after an applicatiqn is filed*under Licensings Board, and all LSS ' .

However, they will ncit be assessed a § 2.1014 or as an interested

• regulations. Practice before the PALB is central processing unit (CPU) charge for govermnental participant under 10 CFR essentially a motions practice, akin to 2-SC-39

PART 2 STATEMENTS OF CONSIDERATION that during the normal discovery, pre- design and development of the Lss* by Section 2.1012 Compliance heari11g phase in a Part 50 proceeding DOE must be undertaken in consultation before a. licensing board, -Oral . with the LSS Administrator. After the .. Section 2.1012 establishes provisions presentations are not precluded, but

• LSS has been designed and becomes ., to ensure compliance with the .

rather will be left to the discretion of the operational, all redesign and requirements of Subpart J, particul~rly board (as is now the case), depending procurement by OOE must be with the . the document submission requirements on the nature of the dispute. See, for concurrence of the LSS Administrator. of § 2.1003. DOE may not submit the example, § § 2.1010 (d) and (e), 2.1015, Section 2.1011(e) provides for the license applic_ation for dqcketing under and2.1016. establishment of an LSS Advisory Subpart J unless the LSS Administrator Review Panel, which will be chartered certifies that DOE is in substantial and Section 2.1011 LSS Management a11d timely compliance with § 2.1003. In Administration under the Federal Advisory Committee Act, to advise DOE on the design and addition, under§ 2.1012(b)(1), no person Section 2.1011 establishes an LSS development of the LSS, and to advise may be granted party or interested Administrator who will be responsible the LSS Administrator on*the governmental participant status in the for managmg, operating, and implementation of the LSS. The LSS hearing if it is not in substantial and maintaining the LSS. Decause the LSS Administrator appoints the members of timely compliance with the requirements will contain in electronic form, the the Advisory Review Panel from of§ 2.1003. A person who is not in documentary material constituting the members of the Licensing Support substantial and timely compliance at the Commission's docket and official record System Advisory Committee established . time specified for the submission of

• for the repository licensing proceeding, pursuant to § 2.1011(e)(2) within sixty .
• petitions to intervene or to become an and because use of the LSS will be an days after the LSS Administrator has* interested governmental participant, integral part of the Commission's been designated. The Licensing Support
• may later come into compliance and be adjudicatory hearing on the license System Advisory Committee will be admitted.to the hearing, assuming they application, the NRC will serve as the composed of the State of Nevada, the *meet all the other requirements in LSS Administrak>r. In order to avoid any coalition of affected units oflocal § 2.1014 or 10 CFR 2.715(c) for conflict-of-interest problems, the LSS government in Nevada that served on admission. However, persons admitted Admini.l!trii.tor cannot be any person or the negotiating committee, DOE, NRC, to the hearing under this provision must organizational unit that either the National Congress of American take th~ proceeding as they find it. The represents the U.S ..Nuclear Regulatory . Indians, the coalition of national *
• Hearing Licensing Board will not Comm1ssion staff as a party to the high- entertain any requests from such a environmental groups that served on the level waste licensing proceeding or a negotiating committee, and other *
• person to delay *the proceeding in order part of the management chain reporting for that person to compensate for time members as the Commission may to the Director of the Office of Nuclear missed in the hearing.' Section 2.1012(d) designate pursuant to the balanced Material Safety and Safeguards. The provides for the termination or
• membership requirements of FACA.

Commission has decided to establish an suspen11ion of an LSS participant's Because DOE is now in the process of independent Office of the LSS Administrator reporting to the designing the LSS, the Advisory Review . access rights if it is in noncompliance

• Panel is not yet available to provide with any applicable order of the Pre-Commission for policy direction and to the Chairman for day-to-day
• advice and recommendati.ons to DOE. In
• License Application Licensing Board or the interim period between publication the Hearing Licensing Board. However, management supervision. The LSS Administrator (like other Commission- of the final rule and appointment of'the any loss of access under this section level offices) will report to the Advisory Review Panel by the LSS does not relieve an LSS participant of its Commission for overall policy direction Administrator, the LSS Advisory responsibilitiea in connection with the
• on all LSS matters except the Commitee will perforrii:the functions of service of pleadings ~der § 2.1013 of certification of DOE compliance the Advisory Review Panel set forth in this subpart.
• required by § 2.1033(h)(1). The LSS
• I 2.1011(e). *
• It is the CommiBBion's intent that. Section 2.1013 Use of LSS During
• Administrator will make that . . Adjudicatory Proceeding **: * *
• determination oiz his/her own, subject to after the commencement of the hearing, formal adjudicatory review (upon
• the primary focus of the Advisory Section 2.1013 establishes procedures request) by the Pre-License Application Review Panel will be on broad, long- for the electronic submission of Licensing Board(§ 2.1010(a)(l)), the term, technical issues. Any immediate pleadings during the hearing, or during Appeal Board(§ 2.1015(b)(i)), and, problems with the functioning of the LSS the pre-license application phase for finally, the Commission itself during the hearing will be addressed by practice before the Pre-License

(§ 2.1015(e)). the LSS Administrator or the Hearing Application Licensing Board under On a related issue, with the exception Licensing Board. i 2.1010, for the electronic transmission of the Commission in its role as LSS . It is anticipated that the DOE and .of Board and Commission issuances and Administrator (see the definition of NRC will enter into a Memorandum of orders; as well as-for on-line access to*

"LSS Administrator in § 2.1001), the LSS         Understanding (MOU), consistent with .               the LSS during the hearing. Under cannot reside in any computer system              the requirements of the rule, on the                 § 2.1013(a) the Secretary of the that is controlled by any LSS                    design and development of the LSS.                   Commission maintains the official participant, including its contractors,             Section 2.1011(d) sets forth the                  docket pursuant to the requirements of and cannot be physically located on the          responsibilities of the LSS.Administrator 10 CFR 2.702, In this regard, each premises. of any LSS participant or its          including providing the necessary            .       potential party, party, or interested contractors.                                     personnel, materials, and services for               governmental participant must submit a The LSS is to be designed and                  the operation and maintenance .of the                signed paper copy of each electronic developed by DOE.consistent with the

• LSS, and entering the documentary adjudicatory filing to the Secretary. The requirements in Subpart J. This material submitted pursuant to section staff would emphasize that section responsibility includes all procurement 2.1003 in searchable full text. as 2.1003 also applies to the submission of of hardware and software. However, the appropriate. pleadings during the hearing. Therefore, 2-SC-40

PART 2 STATEMENTS OF CONSIDERATION an ASC II file, a header, and an image of compliance with U 60.112 or 60.113 but save substantial time during the hearing. the pleading must also be submitted to which in and of themselves may not The use of electronic transmission is the LSS Administrator. The final rule constitute a s_ignificant safety or addressed in I 2.1013. If the LSS is gives the Secretary the flexibility to environmental issue. unavailable for more than four access establish the official docket in either Although § 2.1014(a)(4) places some hours of any day that would normally be hard copy or electronic form depending added restrictions on the amending or counted in the computation of the time on the details of LSS design and the adding of contentions compared to 10 for filing, that day will not be counted in records management requirements of CFR 2.714, the Commission believes that the computation of time. However, this the Federal Archives. Absent good the early availability of documents would not include periods of LSS cause, all exhibits tendered during the through access to the LSS will facilitate unavailability due to a malfunction of hearing must have already been entered the preparation of timely and helter the LSS participant's equipment or to the into the LSS prior to the commencement based contentions at the outset of the operation of that equipment. of that portion of the bearing where the . proceeding, as compared to the exhibit is to be offered. traditional NRC licensing proceeding Section 2.1018 Discovery Section 2.1014 Intervention where contentions must be prepared Section Z.1018 specifies the scope and without the benefit of prior discovery. liming of discovery in the HLW Section 2.1014 establishes the Section 2.1014(c) establishes the Licensing proceeding. The LSS provides standards for intervention in the HLW standards for permitting intervention in the document discovery in the HLW-proceeding. Section Z,1014 incorporates . the HLW proceeding. Intervention is licensing proceeding, supplemented by several of the provisions currently in the permitted as a matter of right by an the derivative discovery in § 2.1019. 10 CFR 2.714 general standards for affected unit of local government as Discovery is limited to access to the intervention. Accordingly, any defined in section 2(31) of the NWPA or documentary material in the LSS; entry provisions of I Z.1014 that remain by any affected Indian Tribe as defined

• upon land for inspection and access to unchanged from the 10 CFR 2.714 in 10 CFR Part 60 of the Commission's raw data; oral depositions; requests for provisions are lo be interpreted regulations. The State of Nevada, ~ *admissions; and infonnal requests for according to the existing practice. DOE or the NRC, is automatically a infonnation. These informal requests Section Z.1014(a) requires petitions for party to the HLW proceeding, assuming
• would be for the type of information intervention and proposed contentions that a Nevada site is the subject of the normally gathered through the use of to be filed at the same time, as well as DOE license application. All other written interrogatories, such as the petitions to participate under petitions to intervene will be evaluated names of all party's witnesses and the

§ Z.715(c)-both within thirty days after according to the factors iri § Z.1Pt4(c)(1) subjects they will addre811

• Therefore, the notice of hearing. In addition to the through (3). the final rule does not generally provide .

factors now in 10 CFR 2.714(a)(Z), § Z.1014(a)(Z) requires the petition to Section 2.1015 Appeals for the use of written interrogatories or reference with particularity the specific Section z.1015 sets forth the depositions upon written questions. documentary material, or absence

• procedures for appealing decisions of
• However, if the infonnal discovery process does not satisfy a request for thereof, that provides the basis for the the Pre-License Application Licensing *.. information, I 2.1018(a)(Z) provides a contention, and the specific regulatory Board or of the Hearing Licensing Board. mechanism for the use of written or statutory requirement to which the Unlike the*existing appeals process, interrogatories or depositions upon contention is relevant. Thie codifies appeals from certain tirpes of written questions, by order of a existing Commission practice in regard interlocutory orders, such as rulings or Discovery Mester appointed under to contentions. the admissibility of contentions, must be § Z.l01S(g). If no Discovery Master has Section Z.1014(a)(4) allows the adding filed within ten days, rather than at the been appointed, the Hearing Licensing or amending of contentions, including conclusion of the proceed~. Board itself may consider these contentions based on the NRC Staff Safety Evaluation Report (SF.R). Section 2.1018 Motions petitions. Although informal discovery Contentions *added or amended before Section z.1010 establishes the may begin in the pre-license application the issuance of the SER will be procedures for motions practice in the phase, an order compelling discovery evaluated according to the factors for HLW proceeding. The final rule does not through written interrogatories or nontimely filings in I Z.1014(a)(1). contain 8 provision similar to 10 CFR through depositions on written questions Contentions based on-information or z.730(d) in regard to oral arguments on can be issued by the Discovery Master issues raised in the SER must be made motions. However, this omission is not or the Hearing Licensing Board _only within forty days after the issuance of intended to change existing practice. i.e.,*. after the license application has been the SER and will bi! evaluated according requests for oral argument on docketed.

to the factors in § z.t014(a)(1). The SER substantive motions are. hoerally The required showing of substantial is to be issued within eighteen months granted. It is within the**discretion of the need in regard to discovery for an LSS after the license application is docketed. Board to allow arguments on motions participant's "representatives" in Any petitions to amend or add under 10 CFR 2.755. § 2.101S(b)(2) does not include contentions made more than forty days "consultants" to a LSS participant, after the issuance of the SER, in addition. Section 2.1017 Computation of Time. unless the consultant's responsibilities to the factors for nontimely filing in Section 2.1017 specifies the are to assist in preparation for litigation.

§ Z.1014(a)(1), must include a showing_      computation of time for an act or an              Section Z.1018(c) empowers the Board that the contention involves a significant event for the HLW licensing proceeding.           to issue an order to protect a party from safety or environmental issue or raises a Because of the availability of the                 abuse of the discovery process. As material issue related to the                electronic transmission of pleadings            noted earlier, the objective of the performance evaluation anticipated by        through the LSS, one day instead of five        negotiated rulemaking is to provide for 10 CFR 60.112 or 10 CFR 60.113. In this      days is-allowed for the transmission of         the effective review of and hearing o(

context, "material" may involve items documents.in response to the service of the DOE license application within the that are material to demonstra_ting a notice or other document. This w,ill three year time period !'pecified in

• 2-SC-41

PART 2 STATEMENTS OF CONSIDERATION section 114(d) of the NWPA. Consistent documents during the deposition. This the Director of the NRC Office of with this objective, § 2.1018[c) includes provision establishes requirements for Nuclear Material Safety and Safeguards criteria to*prevent abuse of the the disclosure, and entry into the LSS, of to allow DOE to proceed with discovery process from frustrating this material in a deponent's possession that construction, aHuming a favorable objective. In ruling on motions to protect" would not be required to be initially Licensing Board decision, if the a party from a particular disc;:overy entered into the LSS under I 2,1003. This Commission did not suspend the request, the Board may consider any includes pe.rsonal records, travel *

• Licensing Boal'd decision after its "undue delay" that would result from vouchers, speeches, preliminary drafts, supervisory immediate effectiv~ness the discovery request, as well as the and marginalia .. "Preliminary drafts" review, or the Appeal Board did not stay failure to respond to a discovery means any nonfinal document that is not the effectivene88 of the Initial decision request. Under" this criterion, the Board a circulated draft, i.e., on which no under 10 CFR 2.788. The Appeal Board will review any motion for a protective formal, unresolved objection or and the Commission would then order from a particular discovery nonconcurrence has been made. . undertake a review of the substantive request, including a request for a written "Marginalia" means handwritten, deposition, to determine whether the printed, or other types of notations merits of the initial Licensing Board request creates the potential for added to a document, excluding decision. lesueince of the construction unreasonably interfering with meeting underlining and highlighting. authorization under these circumstances the three year schedule. When a party would be the event that tolls the time or an interested governmental Section 2.1020 Entry Upon Land for period for determining whether the participant reasonably believes that the Inspection NWPA three year time frame for the Board has not ruled in.accordance with . Section 2.1020 establishes the decision on the construction this rule and its underlying policy, it procedures for parties to gain access to authorization had .been satisfied.

may seek review pursuant to directed the land or property in the possession or Schedule certification under § 2.7'18(i) of this part. control of another party or its contractor The Commission itself may entertain for the purpose of irispection and access In order to l!.88ist the Hearing such requests and will apply the criteria to raw data. However, this provision Licensing Board in establishing a for granting directed certification should not be construed as expanding schedule for tile HLW proceeding that liberally. The Hearing Licensing Board - any of the rights contained in section willfacilitate meeting the timeframe or Discovery Master may also consider 116 or section 118 of the NWPA.* or any specified in the NWPA for a .undue delay as a basis for granting a other applicable statutory or regulatory Commission decision on construction petition for the use of written* . restrictions_, related to site investtsation. authorization, the Commission bas interrogatories or depositions on.written . *prepared the following model timeline, questions under I 2,1018(a)(2). * * *. Section 2.1021 *Fifst f~hear.(ng :. : Conference *

• Thiil.timeline is*intended for general
• In addition, 11 2.1021 and 2,1022, on guidance only, and is not intended to the first and second pre-hearing Section 2.1021 establishes a first pre~ suggest any predisposition by Ute conferences respectively, provide for the hearing conference in the 1-ll.W *
• Commission:on the merits of DOE's establishment of discovery schedules by proceeding. The first pre-hearing future license application.

the Board. In establishing these conference will identify the key i88ues in discovery schedules, the Board must . . .. the proceeding, and consider petitions consider the objective of meeting the .. for intervention. Cay Regulation *,;o Action .

• CFR) .

three-year schedule specified in the . Section 2.1022

• Second Prehearing : :
• NWPA, as well as the early availability Conference -** * . :* . -: ;:
• 0 2.101 (1)(8), FR Notice ol Hearing.

of information made possible by the 2.105(8)(5) Licensing Support System. Furthermore. Section 2.1022 establishes a second 30 2.1014(a)(1) PeL to lnterven_e/request the Board should exercise all due pre-hearing conference in the 1-ll.W for hearing. w, conten-licensing proceeding. The second pre- tions. diligence to ensure that discovery is 2.715(c) Pel tor lltatus as Interested completed within two years of the hearing conference is to be held not govt. par11clpant (IGP). notice of hearing. However, this cciuld later than seventy days after the NRC .50 2.1014(b) Answera to intervantlon & not prevent the Board from establishing staff Safety Evaluation Report is iHued *. IGP petitions. The second pre-hearing conference will 70 2.1021 111 Prehearing Conference. a schedule that provided for less th1m a 100 1st Prehearing Conference continuous two-year period of consider new or amended contentions, . Order: ldenllflea part1c1. discovery, or determining whether any stipulations and.admisllioris of fact,

• pants In proceeding, discovery is necessary after t_he second identification of witnesses, and the . admits contentions. and pre-hearing conference. setting of a hearing schedule. IBII discovery 111d other IChedulea.

Section 2.1018(£) anticipates the Section 2,1023 Immediate . 2.1018(b)(1), Deposition discovery application of the traditional sanctions Effectiveness * . 2.1019 begins. by the Licensing Board for failure to 110 2.1015(b) Appeal1 from 1 at Prehear* respond to a discovery request, Section 2.1023 provides for an Ing Conference Order, w/ including the issuance of an order for a immediate effectivene88 review of the briefs. 120 2.1015(b) Briefs In opposition to ap-response or answer to a. discovery Licensing Board's i.rµtial decision on the peals. request. issuance of a construction authorization. 150 AB order ruling on appeals The Commission's existing regulations

• from 1st Prehearing Con-Section 2.1019 Depositions in 10 CFR 2.764 do not provide for an ference Order.

548 NRC staff Issues SER. Section 2.1019 provides for discovery immediate effectiveness review. Rather 588 2,1014(8)(4) Petitions to amend conten-through the taking of depositions. 10 CFR *2.764 requires a Commission * . tiona bSIBd on SER. Section 2.1019 basically follows the decision on the substantive merits of the. 608 2.1014(b) Answers to petitions to content of the general deposition rule in. Licensing Bo.ard decision before a amend SER-related con-10 CFR 2.740a. However, I 2.1019(i) con*struction authorization decision can tentions. 818 2.1022 2nd Prehearing Confer-provides for the derivative discovery of be final. Section 2.1023 would authorize . _!!nce. 2-SC-42

PART 2 STATEMENTS OF CONSIDERATION Regulation (10 Action LSS during the pre-lice11Be *application geologic medie in which trites for CFR) phase under§ 2.1008. ** repositories may be located.

1. Categories af Docume11ts 2. Any document related to repository 648 2nd Prehearing Confen,nce Order: rules on amended design, eiting: construction, or operation, contentions, sets any fur-

                                                      -Technical reports and analyses               or the transportation of spent nuclear ther discovery schedule.             Including those developed by            fuel end high-level nuclear waste, not and 11111 11ehedule for              contractors                             categorized es an "excluded document",

preffled testimony and -QA/'QC records including hearin;. generated by or in the possession of any 658 2.1015(b) Appeals from 2nd Prehear- qualification and training records contractor of the Department of Energy, lng Conference Order, w/. -Extemel correspondence the Nuclear Regulatory Commission, or briers. -Internal memoranda any other party to the 1-ll..W licensing 668 2. 101 S(b) Briefs In oppoaitlon to ap- -Meeting minutes, Including DOE/NRC peals. proceeding. 698 AB order ruling on appeals meetings, Commission meetings 3. All documents related to the from 2nd Preheering -Drafts [i.e., those submitted for physical attributes of the Basin and Conference Order. decision beyond the first level of . Range Province of the continental 700 2.749 (&et by Final motions for summary management or similar criterion) LB) disposition. United States. 720 2.749 Replies to final motions for

                                                      -Congressional Q's & A's

• 4. Any document listing and/or aumma,y disposition. -"Regulatory" documents related to considering any site or location other 730 SUpp. Info. Dillcovury complete. HLW site selection end licenaina,
• than Yucca Mountain as a possible 740 LB order en final motiona such ea:

for summary disposition. -Draft and final environmental location for a high level nuclear waste 750 2.1015(b) Appeals from final summary repository, or any alternative technology disposition order, w/ aaaesaments to deep geologic disposal. briefs. -Site characterization plans 5. Any document analyzing the effect 760 Evidentiary hearing begins. 2.1015(b) Briefs In opposition to ap-

                                                         -Site   characterization  study plans      of the development of a repository at peals from final summery          -Site characterization p_rogre~            Yucca Mountain on the rights of users of disposition orders.                  reports

• water in the Armagosa ground-wat~

790 AB 0tder on appeal11 from -Issue resolutiop reports 8nal aummary disposition basin in*Nevada. orders.

                                                         --Rulemakings                                  8. Any document analyzing the health 850                 Evldenllary hearing ends.            -Public and agency comment& on.*           and safety Implications to the people 880 2.754(a)(1)     AppTic1111r11 proposed fild-            docwnents                               and environment of the transportation of ings.                             -Response to public comments 890 2.754(a)(2)     Other parties' (except NRC                                                      spent fuel between locations where lllaffe) proposed findings.       -Environmental Impact Statement.           spent fuel is generated or stored and 900 2.764(a)(2)     NRC ataff'e proposed find-              Comment Response Document, and          Yucca Mountain, -Nevada, or any other ings.                                related references                       site nominated for repository 905 2.754(8)(3)     Applicant's reply !O pro-            -License Application (LA), LA data posed findings.                                                              characterization on Mey 28, 1986, 995 2.760           lnttlat decision.                       base, and related references .          Including, but not limited to: **

1005 2.788(a), Stay motions to AB-Notices --Topical reporte.. data, and data a. Any analysis of possible human 2.762(a), of Appeal. analysis

• error in the manufacture of spent fuel 2.1015{c) -Recommendation Report to* * ~~~- . . . .

1015. 2.766(d) Replies to stay motions. 1035 AB ruling on stay motion. President b. Any analysis of the actual* 2.762(b) Appellant's briefs. -Notice of Disapproval, if submitted population density along all of any 1045 2.788(8) Stay motions to Commis-lrion. II. General Topics specific projected routes of travel: 1055 2.788(d) Replies to stay motions.

1. Any document pertaining to the

• c. Any analysis of releases *rrom any 1065 2. 762(c) Appelleo's brief. actual radioactive material 1075 2.762(c) NRC staff brief. location and potential of valuable 1095 2.1023, Supp. Completion of N~SS and natural resources, hydrology, transportation incidents:
• Into Commission *supervisory geophysics, tectonics (including d. Any analysis of the emergency review; Commission response time in any actual radioactive ruling on any stay mo-volcanism), geomorphology, seismir.

tions; issuance of cor1- activity, atomic energy defense materials transportation incident; structlon authorization; activities, proximity to water supplies, e. Any actual accident data on any NWPA 3-year period proximity to populations, the effect upon specific p1-ojected routes of travel: tolled. 1105 2.763 Oral argument on appeals. the rights of users of water, proximity to f. Any calculations or projections on 1165 Appeal Board decision. components of the National Parle the probabililies of accidents on any 1180 2.1015(e), Petitions for Commission System,.the National Wildlife Refuge*. specific projected routes of travel: 2.786(b)(1) review. System, the National Wildlife and g. Any data on the physical properties 1190 2.786(b)(3) Replies to petitions. 1250 Commission decision. Scenic River System, the National or containment capabilities of spent fuel Wilderness Preservation System, or casks which have been used or which. National Forest Lands, proximity to sites are projected lo be used at any where high-level radioactfve waste and hypothetical or actual projected Topical Guidelines repository: spent nuclear fuel is generated or The following topical guidelines are to temporarily stored, spent fuel and h. Any analysis of modeling of the be used for identifying the documentary nuclear waste transportation, sefecy containment capabilities of spent fuel material that should be submitted by factors involved in moving spent fuel or caskll under a stress scenario: LSS participants for entry into the LSS nuclear waste to a repository, the cost i. Any analysis or comparison of spent under section 2.1003. The topical and impact of transporting spent fuel *fuel casks projected to be used against guidelines will also be used by the Pre- and nuclear waste to e repository site, the spent fuel cask certification License Application Licensing Board for the advantages of regional distribution standards of the Nuclear Regulatory evaluating petitions for access lo the in siting of repositories, ~nd various Commission: 2-SC-43*

PART 2 STATEMENTS OF CONSIDERATION

j. Any analysis of the containment c. Paintbrush Tuff c. Lincoln County capabilities of spent fuel casks d. Tuffaceous beds of Calico Hills d. Methodology containing spent fuel which has been e. Crater Flat Tuff

f. Older luffs

z. Population density and distribution burned up over an extended period. a. Populetions*of the State of Nevada 7, Any document analyzing or g. Sedimentary units b. Population of Nye County comparing Yucca Mountain, Nevada, h. Basalt11 c. Population of Clark County with any other site in the aame 2. Structure d. Population of Lincoln County

3. Seismicity 3. Community sell'Vicu geohydrologic setting.

4. Energy and mineral resources a. Housing

8. Any document relating to potential a. Energy resources interference or incompatibility between b.Educetion

b. Metals a Yucca Mountain, Nevada, high-level c. Weter 11upply

c. Nonmetals nuclear waste repository and atomic d. Waste-water treatment

5. Paleontology

e. Solid waste energy activities at the Nevada Test Site 6. Mineralology f, Energy utilitiee and Nellis Airforce base. 7. Geomorphology

8. Tectonlca g. Public safety services

9. Any document related to the land h.* Medical and 1octal aervfces status, use or ownership of Yucca a. Faulting

b. Stress I, Library facilities Mountain, Nevada.

c. Uplift/ subsidence I, Parks and rec:11eation

10. Any document considering or d. Volcanism 4. Social conditions analyzing the attributes or detriments of C. Hydrologic Conditions a. Existing social orsanizatlon end structure any engineered barrier upon the 1, Surface water i. Rural social orsenization and 11oclel struc-radionuclide isolation capability of z. Ground water ture Yucca Mountain, Nevada, or any other a. Ground water movement ii. Social organization end structure In urban site considered. b. Ground water quality Clerk County 3, Present end projected water uae *1n. the b. Culture end lifestyle 11, Any document evaluating the i. Rural culture effect of extended fuel burn-up on Yucca area

4. Groundwater resources

• ii. Urban culture Mountain, Nevada's adequacy as a c. Community attributes

5. Climatology repository site for disposal of spent fuel 6. Metearology d. Attitudes and perceptions toward the *re-or upon the design of any such D. Geochemistry pository theoretical repository; 1, Rock chemistry of the overlyq and -un- 5. Fiscal and govemmentel &tructw,t

12. Any document analyzing or derlyins host units 2. Expected Effecte of the Site Characteriza-investigating the potential for discharge Z Weter c:hemistl}' of wisaturated or eatura~ tion Activities or radionuclides into the Death Va,Jley

• edzone11 * ... _
• A. Site Characterization Activities
• National Monument. 3. Alteration 1. Field studie1

                                             , .. Retardation end traDBport . *,:.                 a. Exploratory drilling

13. Any document analyzing the

• b. Geophysical IJUl'Veya recharge of the underlying. saturated E. Environmental SetUns.. ,_, ...

1, Lend use .. c. Geologic mapping zone or the hydroconductivity of the d. Standard operating practices for reclama-

a. Federal use unsaturated zone at Yucca Mountain. b. Agriculture! tion of areas .disturbed* by field *1tudies

14. Any document containing any data I. Grazing lend e. trenching *

• or analysis of volcanism in thi: geologic II. Cropland . 2. Exploratory shaft facility setting of which Yucca Mountain is a *
• C. Mining a. Surface facilities part. d. Recreation b. Exploratory oheft.and undersround work-15, Any document containing any data e. Private end commercial development ings or analysis of tectonic events at Yucca
• 2. Terre11triel end aquatio eco11yatema, . : .* ,
• c. Secondary egre1111 shaft *.

Mountain, or pertaining to the tectonic a. Terrestrial vegetation. d. Exploratory abaft te1Uns prognup I. Larrea-Ambrosia* e. Final disposition *

• framework of the Yucca Mountain area il. Lerrea-Ephedra or Larrea-Lycium f. Standard op2reting practices thet would or any document containing any.data or. iii, Coleogyne minimize potential environmental damage analysis of faults with or without *
• iv. Mixed transition 3. Other studies * ..
• surface expres11ion in.the u.ea of Yucca v. Grassland-burn site a. Geodetic IIUJ'tleys Mountain.
• b. Terrestrial wildlife b. Horizontal core drilling

16. Any document containing LMammala c. Studies of past hydrologic conditions instructions or other limitations on the Ii, Birds d. ~tudies of tectonics, eelemiclty, end* :vol-scope of work to be performed by* iiL Reptiles canism **

Department of Energy personnel or c. Special-interest *special' e. Studies of seismiclty induced by weapons. contractor's personnel. d. Aquatic ecosystema testing

17. Any document pertaining to 3. Air quality end* weather conditions: Air f. Field experiments in G-Tumlel facilities quality g. Laboratory studies prevention or control of human intrusion 4. Noise h. Waste pacbge .design,_testing, end analy-at the Yucca Mountain site. 5. Aesthetic resource11 sis Ill. Specific Topics. 6, ArcheeologicaL cultural, and bl1torical *re- B. Expected Effecta of Site Characterization sources 1. Expected effocta on the environment

7. Radiological background a. Geology, hydrology, land'use end surface

1. The Site a. Monitorins program. soils A. Location, General Appearance and Ter- b. Dose BBsessment i. Geology rain, and Present Use *F. Transportation ii. Hydrology B. Geologic Conditions 1. Highway infrastructure* and current uae iii. Lend use

1. Stratigraphy and volcanic history of the 2. Railroad infrastructure and current use iv. Surface soils Yucca Mountain area G. Socioeconomic Conditions b. Ecosystems

a. Caldera evolution and genesis of ash 1, Economic conditions

• c. Air quality flows* a. Nye County. d. Noise

b. Timber Mountain T!lff b. Clark County e. Aesthetica 2-SC-44

PART 2 STATEMENTS OF CONSIDERATION

f. Archaeological, cultural, end historical re- i. National shipment and routing Iii, Potentially adverse conditions sources Ii. Regional shipment and routing iv *. Evaluation and conclusion for the qualify-2, Socioeconomic end transportation condi- b. Radiological impacts ing condition on the meteorology guideline tions i. National impacts e. Offslte Installations end operations

a. Economic conditions

• ii. Regional impacts I. Data relevant to the evaluation

i. Employment iii. Maximally exposed Individual Impacts II. Favorable conditions ii. Ms terials c. Nonrediologicel impacts ill. Potentially adverse conditions

b. Population density and distribution i. National impacts Iv. Disqualifying conditions

c. Community services ii. Regional impacts v. Evaluation and conclusion for the qualify-

d. Social conditions d. Risk summary Ing condition on the offslle Installations

e. Fiscel end governmental structure I. National risk summary opera lions guideline f, Transportation Ii. Regional risk summary f, Environmental quality

3. Worker safety e. Costs of nuclear waste transportation I, Data relevant to the evaluation *

4. Irreversible and Irretrievable commitment f. Emergency response II. Favorable conditions of resources D. Expected Effects on Socioeconomic Con- 111, Potentially adverse conditions C. Alternative Site Characterization Activi- ditions

• Iv. Disqualifying condition ties 1. Economic conditions V,* Evaluation and conclusion for the qualify-

3. Regional and Local Effects of Locating a a. Labor Ing condition on the environmental quality Repository at the Site b. Materials and resources guidelines A. The Repository

• c. Cost g. Socioeconomic Impacts

1. Construction d. Income I. Date relevant to the evaluation

a. The surface facilities e. Land use II. Favorable conditions

b. Access to the subsurface f. Tourism Iii. Potentially adverse conditions .

c. The subsurface facilities 2. Population density and distribution_. Iv, Disqualifying condition

d. Other cons !ruction 3, Community services

• v, Evaluation end conclusion "for the qualify-

i. Access route a. Housing

• Ing condition on the socioeconomic guide-ii. Railroad b. Education . line iii. Mined rock handling and storage facili- c. Water supply h. Transportation ties d. Waste-water treatment I. Data relevant to the evaluation iv. Shafts end other facilities e. Public safety services ii. Favorable conditions

e. Utilities f. Medical services Ill. Potentially adverse conditions

2. Operations . g. Transportation Iv. Evaluation and conclusion for the qualify-

a. Emplacement phase 4. Social conditions Ing condition on the transportation guide-I. Waste receipt a.* Social structure and social organization line **

ii. Waste emplacement I, Standard effects on social structure and 2. Preclosure System

b. Caretaker phase social organize tion*

• a. Preclosure system: radiological safety 3, Retrievability 11. Special effects on social structure
• and I. Data relevant to the *evaluation

4. Decommissioning end closure . social organize lion ii. Evaluation of the Yucca Mountain site

5. Schedule and labor force b. Culture and lifestyle Iii. Conclusion for the qualifying condition on 6*.Materiel-and resource requirements c. Attitudes end perceptions . the preclo11ure system quldeline .radiologi-B. Expected Effects on the J)hysical Environ: 5. Fiscal conditions and goveniment* a~c- cal safety * ** **

ment ture *b,

• Preclosure system: environment, socioe-

1. Geologic impacts 4. Suitability of the Yucca Mountain Site for conomics, and transportation * *

2. Hydrologic .Impacts . Site Characterization and for Development I. Data relevant to the evaluation

3. Lend use as a Repository ii. Evaluation of the Yucca Mountain site

4. Ecosystems A. Suitability of the Yucca Mountain Site for Ill. Conclusion for the qualifying condition on

5. Air quality Development as a Repository: Evaluation the preclosure system guideline: environ-

a. Ambient air-quality regulations Against the Guidelines That .Do Not Re- ment, eocloeconomlce, and transportation

b. Construction quire Site Characterization

• 3. Postclosure technical

c. Operations 1, Technical guidelines a. Geohydrology

d. Decommissioning and closure a. Postclosure site ownership *and *control I. Data relevant to the evaluation

6. Noise I. Data relevant to the evaluation Ii. Favorable conditions*

a. Cons !ruction II. Favorable condition Ill, Potentially adverse condition,

b. Operations iii. Potentially adverse condition

• Iv. Disqualifying condition

c. Decommissioning and, closure iv. Evaluation and conclusion for the qualify- v. Evaluation and conclusion for the qualify-7, Aesthetic resources ing condition on the postclosure site own- Ing condition on the poatclosure geohydro-

6. Archaeological,. cultural, aµd historical re- ership and control guidelines logy guideline * . .*

• sources b. Population denslty*and distribution b. Geochemistry *

9. Radiological effects I. Data relevant to the evaluation

• I. Data relevant to the evaluation

a. Construction ii. Favorable condition ii. Favorable conditions

b. Operation Iii. Potentially adverse condition Iii. Potentially adverse conditions

• I. Worker exposure during normal operation Iv. Diaquellfying condition fv;Evaluation and conclusion for the qualify*

ii. Public exposure during normal operation v. Evaluation and conclusion for the *quaUfy*. Ing .condition on the postclosure geochem-Iii. Accidental exposure during opera lion Ing condition on the population density istry guideline

• C. Expected Effects of Transportation Activi- and distribution guideline v. Plans for site characterization ties. c. Preclosure site ownership and control *
• c. Rock characteristics

1. Transportation of people and materials I. Data relevant to the evaluation I. Data relevant to the evaluation

a. Highway Impacts ii. Favorable condition ii. Favorable conditions

i. Construction iii. Potentially adverse condition iii. Potentially adverse conditions

11. Opera lions Iv. Evaluation and conclusion.for. the-qualify- Iv. Evaluation and conclusion for the qualify-Iii. Decommissioning ing condition on the preclosure site owner- . . Ing conditions on the* .postclosure rock

b. Railroad Impacts ship and control guideline**** .. "'*,,.,: '-' characteristics guideline * * *

2. Transportation of nuclear wastes d. Meteorology d. Climatic changes

a. Shipment end routing nuclear WHSte ship- I. Data relevant to the evaluetlon*- i. Data relevant to the evaluation ments ii. Favorable conditions ii; Favorable nondilions 2-SC-45

PART 2 STATEMENTS OF CONSIDERATION Iii. Potentially adverse conditions a. Data relevant to the evaluation g. Value, for factor, needed lo calculate iv. Evaluation end conclusion fot the climate b. Evaluation popula lion risko changes qualifying condition c. Conclusions for the qualifyins condition h. Results of population risk analyses

e. Erosion on the ease and cost of siting, construc- j. Uncertainties I. Data relevant to the evaluation tion, operation, and closure guideline 4. Risks associated with defective cask con-ii. Favorable conditions 7. Conclusion regarding suitability of the struction, lack of quality assurance, Inad-iii. Potentially adverse conditions Yucca Mountain Site for site characteriza- equate maintenance and human error iv. Disqualifying conditions tion, D. Cost Analysis

.f. Dissolution B. Performance Analyses 1. Outline method -i. Data relevant to the evaluation 1. Preclosure radiolosical safety assessments* 2. Assumptions ii. Favorable condition a. Preclosure radiation protection standards 3. Models iii. Potentially adverse condition b. Methods for preclosure radiological as- 4. Cost estimates iv. Disqualifying condition sessment* 5. Limitations of results

v. Evaluation and Conclusion for the qualify- I. Radiological auessment of construction E. Barge Transport to Repositories ing condition on the postclosur*e and disso- activities F. Effect of a Monitored Retrievable Storage lution guideline ii. Radiological asseB8ement of normal oper- Facility on Transportation Estimates

g. Tectonics ations G. Effect of At-Reactor Rod Con1101idation on

i. Date relevant to the evaluation

• Iii. Radiological aSBessment of accidental re- Transportation Estimates Ii. Favorable condition leases H. Criteria for. Applying .Transportation iii. Potentially adverse condition z. Preliminary analysis of postclosure per- Guideline
• Iv. Disqualifying condition formance _ J. DOE Re11ponsibllitie1 for Transportation

v. Evaluation and conclusion for the qualify- a. Subsystem description Safety ing condition on the postclosure tectonics i. *Engineered barrier subsystem 1.-Prenotification guideline ii. The natural barrier subsystem 2. Emereency responae

h. Human interference: natural resources and b. Preliminary performance analyses of the 3. Insurance coverase for tr~porlation ac-

    -site ownership and control                                                                           cidents major components of the sy1tem.

i. Data relevant ta the evaluation l. The waste package lifetime J. Model Mix ii. Favorable conditions 1, Train shipmentu .

ii. Release rate from the e~neered barrier a. Ordinary iii. Potentially adverse condltlons subsystem - Iv. Disqualifying conditions . b. Dedicated train

c. Preliminary system performance descrip- 2, Truck shipmentl

v. Evaluation and conclusion for the qualify- tion and analysis

• ing condition. on the poatclosure human* d. Comparisons with regulatory performance a. Legel weieht Interference and natural resources techni- b. Overweight objectives *
• cal guideline e. Preliminary evaluation of disruptive .

4. Postclosure system events: disruptive natural processes Environmental Impact: Categorical

a. Evaluation of the Yucca Mountain Site f. Conclusions*

• Exclusion

i. Quantitative analysis 5. Transports lion ii. Qualitative analysis A. Regulations Related to* Safeparda The NRC has determined ihat this

b. Summary ~lid conclusion for the qualify- 1. Safeguards final rule is the type of action described ing condition on the postclosure system in categorical exclusion 10 CFR * *. .

• Z. Conclusion guideline B. Packagings 51.22(c)(1). Therefore, neither an

5. Preclosure technic11l environmental impact statement nor an 1, Packaging design, testing, and analysis

11. Surface characteristics

i. Data relevant to the evaluation z. Types of packagine environmental assessment.hes been ii. Favorable conditions a. Spent fuel prepared .for thio fina.l rule.

iii. Potentially adverse conditions b. Casks for defense high-level waste and iv. Evaluation and conclusion for the qualify- West Valley high-level waste Paperwork Reduc:Uon Act Statement Ing condition on the postclosure surface c. Casks for use from an MRS* to the *rep,osl- . This rule does*not contain information tory . *. . characteristics guideline

3. Possible future developments collection requirements that are subject

b. Rock characteristics

i. Data relevant to the evaluation* a. Mode-specific regulations . to the Paperwork Reduction Act of 1980 ii. Favorable conditions b. Overweight truck casks (44 U.S.C. 3501 et eeq.).

iii. Potentially adverse conditions c. Rod consolidation Iv. Disqualifying condition d. Advanced handling concepts Regulatory Analysis v; Evaluation and conclusion for the qualify- e. Combination storage/shipping casks C. Potential Hazards of T.ransportatlon The DOE analysis of the costs and ing condition on the postcloaure rock char-

l. Potential coneequences to an Individual benefits of the LSS (U.S. Department of acteristics guideline

c. Hydrology exposed to a maximum extent Energy, "Licensing Support System

i. Data relevant to the evaluation a. Normal transport Benefit-Cost Analysis" July, 1988) and ii. Favorable conditions b. Accidents companion DOE reports ["Preliminary iii. Potentially adverse condition 2. Potential consequences to a large popula- Needs Analysis;" "Preliminary Data iv. Disqualifying condition tion from very severe transportation acci- Scope Analysis:" and "Conceptual

v. Evaluation end conclusion for the qualify- denli

• Design Analysis;") are available for ing condition on the postclosure hydrology 3. Risk &Hesament inspection in the NRC Public Document guideline e. Outline of method for ea~ting popula- Room, 2120 L Street NW., Washington,

g. Tectonics tion risb DC. Single. copies may be obtained from I. Data relevant to the evaluation b. Computational models. and methoda for population risk& *

• Francis X. Cameron, Office of General ii. Favorable condition iii. Potentially adverse conditions c. Changes to
• the analytical models end Counsel, U.S. Nuclear Regulatory iv. Disqualifying condition methods for population risks Commission, Washington DC, 20555;

v. Evaluation and conclusion for the qualify- d. Transportation scenarlo11 evaluated for Telephone: (301)-492-1823.

ing condition on the postclosure tectonics risk analysis Regulatory Flax.ibillty Analysis guideline _ e. Assumption about wastes

6. Ease and cost of lifting, *constr.uction, oper- f. Operational consideretiona for usa, _In risk In accordance with the.Regulatory.

ation. and cloaure analysis. flexibility_A.c:t o f ~ (5 U,S.,C. 805(µ)), 2-SC-46

PART 2 STATEMENTS OF CONSIDERATION the Commission certifies that this rule multiple examples of significant is appropriate under the circumstances will not, if promulgated, have a violations; (3) to clarify the assessment of a particular case. A similar statement significant economic Impact on a factors for corrective action, past is being added to the Enforcement substantial number of small entities. The performance, and duration; (4) to modify Policy to avoid any implications that final rule affect,s participants in the the severity level examples involving codification of the Policy in the Code of Commission's HLW licensing violations of 10 CFR 50.59 and medical Federal Regulations indicates that the proceeding. The substantial majority of

• misadministrations; (5) to revise the Commission intends that the these participants do not fall within *the . Transportation and Safeguards Enforcement Policy is a binding scope of the definition of "small supplements; and (6) to make minor regulation.

entities" set forth in the Regulatory deletions and language changes. The Revisions to the Enforcement Policy Flexibility Act or the Small Business Enforcement Policy statement is Size Standards set out in regulations intended to inform licensees, vendors, Revisions to the policy now being issued by the Small Business and the public of the bases for taking made are described in the following Administration at 13 CFR Part 121. various enforcement actions. The policy paragraphs. Only the sections to which is codified as Appendix C to 10 CFR changes were made are discussed here. Backlit Analysis Part 2. The numbering of the sections tracks the The NRC has determined that the DATES: This revised statement of policy section numbers in the policy. backfit rule, 10 CFR 50.109, does not is effective October 13, 1988 while V.A. Notice of Violation apply to this rule and, therefore, that a comments on the changes are being received. Submit comments on or before This section has been changed to backfit analysis is not required for this provide the staff with the flexibility not rule because these amendments do not December 12, 1988. to issue a Notice of Violation for involve any provisions which would ADDRESSES: Send comments to: inspection findings which involve impose beckfits es defined in 10 CFR Secretary, U.S. Nuclear Regulatory isolated violations at a Severity Level V. 50.109(e)(1). Commission, Washington, DC 20555. Such violations are by definition of List of Subjects in*10 CFR Part 2 ATTN: Docketing and Service Branch. minor regulatory concern. Hand deliver comments to: One White Documentation of the violation in an Administrative practice and Flint North, 11555 Rockville Pike, inspection report or official field notes is procedure. Antitrust, Byproduct Rockville, MD between 7:45 a.m. to 4:15 sufficient provided corrective action is material, Classified information, p.m. underway before the inspection ends. Environmental protection, Nuclear Comments may also be delivered to "Official field notes" are an alternative materials, Nuclear power plants and the NRC Public Document Room, 2120 L to inspection reports used in the reectors,-Penalty, Sex discrimination, . _ Street, NW. between 7:45 a.m. and 4:15 materials program for smaller licensees. Source material, Special nuclear ,p.m. Given the minor concern with such material, Waste treatment and disposal. Copies of comments may be examined violations, a formal reply from a For the reasons set out in the

• at the NRC Public Document Room, 2120 licensee is not needed nor is preamble and under the authority of the L Street NW., Washington, DC. expenditure of agency resources to Atomic Energy. Act of 1954, as amended, FOR FURTHER INFORMATION CONTACT: prepare a Notice of Violation normally the Energy Reorganization Act of 1974, James Lieberman, Director, Office of warranted. A Notice of Violation may as emended, and 5 U.S.C. 552 and 553, . Enforcement, U.S. Nuclear Regulatory be issued if the violation was willful, if the NRC is adopting the following Commission, Washington, DC 20555 past corrective actions have not been amendments to 10 CFR Part z. (301--492-0741). sufficient, or if the circumstances i54 FR 15372 SUPPLEMENTARY INFORMATION: warrant increasing the severity of Level Published 4/18/89 Background ~yiolations to a higher severity level.

Effective 5/18/89 V.B. Civil Penalty The Commission's Enforcement Policy

.Early Site Permits; Standard Design          was first issued on September 4, 1980. 1. Exercise of Discretion (Section V.G)

Certifications; and Combined Licenses Since that time, the Enforcement Policy for Nuclear Power Reactors has been revised on a nu~ber of The current policy in Section V.B.

occasions, most recently on March 23, provides that civil penalties are See Part 52 Statements of Consideration 1988 (53 FR 9429). Based on additional imposed, absent mitigating experience, the Commission has circumstances, for Severity Level I and

-53FR40019                                     determined that it is appropriate to     II violations but are considered for Published 10/13/88                            make additional changes in its Policy     Severity Level III violations. Section Comment period expires 12/12/88.                                                       VIII, Responsibilities, provides that the and Procedure for Enforcement Actions.

10 CFR Part 2 The primary changes being made staff has the discretion as to whether or involve providing greater incentives for not it should propose a civil penalty Policy and Procedure for Enforcement licensees to identify and correct after considering the principles in the Actions; Polley Statement violations by decreasing civil penalties Enforcement Policy, the technical for certain of those violations and significance of the violations, and the AGENCY: Nuclear Regulatory increasing civil penalties where the ' surrounding circumstances. Thus, the Commission. licensee fails to identify, prevent, or policy as written provides the staff with ACTION: Policy statement: revision. correct violations, and revising the discretion as to whether or not to Transportation and Safeguards propose a civil penalty for a violation at

SUMMARY

The NRC is publishing a Severity Level III. However, the NRC revisions to its Enforcement Policy (1) to supplements of the Enforcement Policy.

The Enforcement Policy is codified in 10 practice has been that civil penalties are provide for greater discretion in issued for Severity Level III violations determining whether to issue a civil CFR Part 2, Appendix C of the Commission's regulations to provide absent mitigating circumstances. The penalty for certain licensee-identified staff may, under appropriate and-corrected violations; (2) to provide widespread dissemination of this policy. However, the Enforcement Policy is a circumstances, classify a violation at a for higher civil penalties for NRC- Severity Level IV even if the identified violations, licensee's failures policy statement and not a regulation. The Commission may accordingly supplements provide a similar example to take action in response to prior notice at a Severity Level III based on the 9f concerns at any of its facilities, and deviate from the Enforcement Policy as significance and circumstances of the 2-SC-47

PART 2 STATEMENTS OF CONSIDERATION violation because the examples in the subsequently exercise further discretion to grant 50% mitigation will be based supplements are by the policy, examples for similar violations later identified primarily on the three factors stated in and not controlling. However, once the unless the licensee's program is being the policy: Timeliness, initiative, and determination is made that a violation accelerated to provide assurance that comprehensiveness. The weight to be should be categorized at a Severity similar significant issues do not exist. given to each of these three elements is Level III, the viola lion is of significant The third example involves additional dependent on the circumstances of the regulatory concern, and a civil penalty is occurrences of a violation for which particular case. proposed absent mitigating enforcement action has been taken. This c. Past Performance. In the past the circumstances unless the staff seeks change is to encourage a licensee, as time period for assessing prior Commission approval not to issue a part of corrective actions, to locate performance for a Severity Level III or penalty. additional violations with the same root greater violation has not been specified. There are three Severity Level III cause without the concern that it may be The policy has been changed to state situations where it may not be penalized if it identifies additional

• that the past two years or the period appropriate to issue civil penalties in the violations, reports, and corrects them. In within the last two inspections, interest of encouraging licensee applying this example, the staff will whi9hever is the longer period, should identification, reporting, and correction consider the reasonableness of the be the normal interval for considering of violations and minimizing the licensee's action, the timeliness of the past performance. This time period potential to provide disincentives for action, and whether the later violations should allow sufficient time to licensees to identify and correct change the safety significance or determine a performance trend for violations. Accordingly, the policy has character of the initial regulatory applying this factor. This time period been changed in Sections V.B. and V.G. concern. may be longer (two past inspections to provide three additional examples for These examples are, as indicated, rather than one past inspection) than the exercising discretion in not proposing examples of where discretion may be time period for considering civil civil penalties. This should increase exercised. Whether or not to exercise penalties for repetitive Severity Level IV incentives for a licensee to scrutinize its the discretion is dependent on the
• violations because some material operations at its own initiative. circumstance~ of the particular case. licensees are inspected at a frequency In addition to the three additional greater than one year and a longer time The first example involves licensee examples of discretion being provided, period, i.e., two past inspections, is identified and corrected violations the Deputy Executive Director for needed to establish a performance trend where the violation was (1) not Regional Operations' authority to not for those licensees.

reasonably preventable by licensee issue a civil penalty, as stated in Section action in response to a previous In addition, this factor has been VII of the Policy, based on the merits of regulatory concern or prior notice of a the case is restated in this section. This chan~ed .to provide more flexibility in problem within two years of the cons1dermg past performance in the discretion is expected to be used only inspection or since the last two where application of the guidance in the assessment process. Currently, past inspections, (2) not willful, and (3) not performance focuses on prior representative of a breakdown in policy is unwarranted and requires performance in the area of concern management controls. This change is advance notice to the Commission. though overall performance can be intended to avoid penalizing a licensee 2. Mitigating and Escalating Factors considered. The effect of deleting the whose current performance is consistent reference to general area of concern is

a. Identification and Reporting. This with the objectives of the policy, i.e., to permit greater consideration of factor is being retitled and changed to identifying, reporting, and correcting permit a penalty to be increased if NRC overall performance. With the change violations. Under this provision the staff both overall performance and identifies a violation. This is designed to may exercise discretion and not propose provide an additional incentive for performance in the area of concern may a civil penalty for a Severity Level III be considered.

licensees to identify violations. Given violation even if the violation existed for the number of licensees' employees and d. Prior Notice. This factor has been an extended duration. This provision the limited number of NRC inspectors, changed to permit a penalty to be would not be used for Severity Level III Severity Level I, II, or III violations increased up to 100% of the base penalty violations involving release of should be identified first by licensees rather than 50%. This change is being radioactive material or overexposures in and, therefore, NRC should not be made to provide incentives to respond excess of regulatory limits because of identifying significant violations. Thus, to notices of safety concerns. If a the significance of such failures. it is appropriate to increase a penalty if !icensee is put o~ notice of a problem by The second example involves past NRC identifies the violation. This factor 'its own actions, its responsible violations that are not likely to be has also been changed to delete the employees, industry, or NRC and fails to identified during routine surveillance or

• reference to the length of time the take action to prevent a Severity Level QA activities of a licensee. Many violation occurred because that is *III violation, then a penalty should be licensees have or are embarking on considered under the duration factor. substantially increased.

major voluntary efforts to review past The issue under this factor is whether a

• Another important change to this activities. From a safety perspective licensee should have reasonably factor is to consider notice arising out of clearly there are benefits for both a identified the violation earlier. activities of a licensee at other facilities licensee and the public to have past b. Corrective Action. This factor is it controls whether or not under problems such as those involving being changed to delete the term different licenses. This change comes engineering, design, or installation "unusually. In the past, the policy has out of the lessons learned from the identified, reported and corrected before been applied to require corrective action Tennessee Valley Authority problems a system with deficiencies is called to not only be prompt and extensive but but is equally applicable to other upon to operate. In these cases to be unusually so before a full 50% reactors and material licensees who discretion could be exercised regardless mitigation is allowed for corrective hold more than one license or have more of prior notice, past performance, or action. In some cases there is nothing than one facility or location. If a duration to avoid disincentives for a unusual about the corrective action even licensee is aware of a significant issue licensee who is aggressively pursuing a though it is clear that prompt and at one of its facilities that needs formal program to identify and correct extensive corrective action was taken. corrective action, NRC expects that the past problems. If a licensee's program This clarification is intended to provide licensee will consider the application of identifies Severity Level III violations, the discretion for 50% mitigation when corrective action at all other licensed the staff would not intend to quality action is taken. Whether or not operations it controls. The failure to act 2-SC-48

PART 2 STATEMENTS OF CONSIDERATION in such a responsible manner will now issue of the failure to take corrective subject to a Severity Level JII citation be the basis for increasing a penalty to action for similar violations at other even if, after the fact, it turns out that an provide additional incentives for the facilities controlled by a licensee. unreviewed safety question or a conflict licensee to identify and correct its with a technical specification does not V.E. Enforcement Actions Involving problems. A licensee should not be Individuals exist. This is designed to capture the dependent on the NRC to identify a circumstances where a reasonable violation once the licensee has had This section is being clarified to engineer would need to perform an reasonable notice of a potential indicate that enforcement action may be evaluation before concluding that an problem. This does not mean every taken against an individual's license or unreviewed safety question or a conflict similar violation at another facility of against a corporate license that may with a technical specification did not the licensee will he cause for escalation. impact an individual where the person's exist but did not do the evaluation. But escalation may occur if it was conduct places into question NRC's A change also has been made to this reasonable to expect the licensee to reasonable assurance that licensed supplement as well as Supplements III, consider the need for corrective action activities will be properly conducted. Safeguards, IV, Health Physics, V, at its other facilities. Actionable conduct includes matters Transportation, and VI, Fuel Cycle and

e. Multiple Examples. This factor has that raise integrity, competence, fitness Material Programs to provide an express been changed to permit a penalty to be for duty, or other issues that may not example of a Severity Level III problem increased up to 100% of the base penalty necessarily be a violation of for multiple or recurring violations that rather than 50%. This change is being Commission requirements. Also added collectively reflect a potentially made to be able to better reflect the in this section is a provision to indicate significant lack of attention or added significance of multiple that action would not be taken for a carelessness toward licensed violations. willful violation in an emergency responsibilities. Although the practice of

f. Duration. The policy has been provided the standards of 10 CFR grouping a number of violations clarified by making duration a specific 50.54(x) are met. individually which may be of minor factor to consider iti the assessment V.G. Discretion concern but collectively are of a process and to assign a percentage to be significant regulatory concern is

,applied to the base amount. This was In addition to the changes already permitted under the existing done to provide greater assurance of described, this section is being changed Enforcement Policy, express examples uniform application of the duration to clarify that where discretion is exercised to not issue a Notice of illustrating this practice may be helpful. factor. Section 234 of the Atomic Energy Act of 1954, as amended, provides that Violation, the violation will be Supplement III-Safeguards continuing violations may receive described in an inspection report or official field notes. This will assist the This supplement has been extensively separate daily assessments. Whether to rewritten to provide more flexibility to do so is a function of the circumstances agency in tracking repetitive concerns for purposes of past performance. address the significance of safeguards of each case. It is clearly appropriate to violations. In addition, similar examples have daily assessments where there is VIII. Responsibilities of different severity levels for types of willful conduct, i.e., a licensee permitted a violation to continue. In other cases an The change in this section clarifies violations have been added. The most increased assessment may be warranted that judgment is exercised in issuing significant change is to address the area based on significance. It is appropriate, Notices of Violations as well as civil of access control violations which is one for those cases for which a penalty is penalties. For example, while most of the most frequent issues, resulting in not assessed on a daily basis, to be able violations result in at least a Notice of escalated enforcement action in the to increase a penalty up to 100% to Violation, discretion may be exercised safeguards area. The significance of an address the significance of the violation. in developing the particular citation to access control problem is a function of It is recognized that a number of use including the number of examples of the ease of exploitation. The policy has factors consider duration. Prior notice the violation to be included in the been changed to consider the does so from the view that the licensee citation and the legal requirement predictability, identifiability, and ease may have had time to avoid a violation violated. In addition, discretion may be of passage of the vulnerability from occurring. But that is different from exercised in determining whether there demonstrated by the violation in the duration of a violation. When a is sufficient evidence to issue a citation. determining the severity level of an penalty is not mitigated for licensee Similarly, discretion may be exercised in access control violation. Predictability identification because of the age of the determining the appropriate severity refers to a vulnerability that lasts for a violation, NRC is focusing attention on level after considering the guidance in long period of time (and is known to the fact that a licensee performing as the supplements which are examples exist) or if it recurs with some expected should have identified the and not controlling. For example, it may predictable regularity or schedule, violation earlier and not that the be appropriate to categorize an allowing the potential intruder to know violation is more significant because of overexposure violation resulting from a when to attempt the penetration. the length of time the violation existed. "hot particle" at a lower severity level Identifiability refers to the ease with Under the duration factor the issue is than described for the level of exposure which an observer can (1) see the whether the violation is more significant because of the significance of the opening, and (2) know that it leads because of its duration. particular exposure. The last sentence of footnote 5 has somewhere advantageous to a saboteur. V.D. Escalation of Enforcement been deleted because it is not needed in Ease of passage refers to the structure of Sanctions the policy. Should there be additional the opening, whether the potential delegation to Regional Offices, the intruder can maneuver himself/herself This section has been changed to along the interior of the pathway to gain delete the reference to progression policy can be changed at that time. access to the area, and includes the based on a single license. This is an area Supplement I-Reactor Operations environment of the opening, i.e., whether where judgment and discretion are there is continuous flushing or some required. The policy is changed to Example C.6. involving violations of 10 CFR 50.59 has been changed to other environmental factor that makes maximize the flexibility in this area. As the pathway inhospitable to humans. described earlier, the prior notice clearly indicate that a licensee who section of the policy is also being violates that requirement and operates changed to specifically consider the in an* unanalyzed condition_may be 2-SC-49

PART 2 STATEMENTS OF CONSIDERATION adjudicatory tribunal with the Office of personal service to serve the Secretary . Supplement V-Transportation by overnight mail. The rule also

• the Secretary in the same or equivalent This supplement has been changed to manner in which they were filed with provides that service of pre-filed make the radiation levels and the tribunal. This will result in the Office testimony and demonstrative evidence contamination levels more consistent of the Secretary receiving the pleading (such es maps and exhibits) on the with the health physics examples in on approximately the same day as the Secretary may be accomplished by Supplement IV. In addition, flexibility tribunal. normal mail in all cases.

has been added to address violations EFFECTIVE DATE: July 26, 1989. Because this amendment relates associated with shipping papers, solely to matters of agency practice, *

• FOR FURTHER INFORMATION CONTACT: good cause exists for omitting notice of labeling, and packaging. Examples have Charles E. Mullins, Attorney, Office of been added for Severity Level IV proposed rulemaking and public the General Counsel, U.S. Nuclear procedures thereon as unnecessary.

violations to indicate that failure to Regulatory Commission, Washington, register as an authorized user of NRC- DC 20555. Telephone: (301) 492-1806. Environmental Impact: Categorical Certified Transport packages or to Exclusion SUPPLEMENTARY INFORMATION: The assure that packages meet applicable Commission has discovered that in The NRC has determined that this

• requirements are more than a minor individual proceedings before its various final rule is the type of action described regulatory concern. in categorical exclusion 10 CPR
• Atomic Safety and Licensing Boards, Supplement VI-Fuel Cycle and Atomic Safety and Licensing Appeal 51.2Z(c)(1), Therefore, neither an Materials Program Boards, and Administrative Lew Judges, environmental impact' statement nor an This supplement has been changed to some motions and pleadings addressed environmental assessment has been provide that multiple errors that result in to those tribunals are served on prepared for this final regulation.

diagnostic misadministrations or a (delivered to) those tribunals in a more Paperwork Reduction Act Statement recurrent violation that results in a expeditious manner than they are served on the Secretary of the This final rule contains no new or diagnostic misadm!nistration may be amended information collection categorized at a Severity Level III. This Commission. For instance, the tribunals sometimes receive filings by telecopier requirements and therefore is not change is being made to emphasize the subject to the requirements of the need to comply with requirements in or telefax, by express mail, or by hand delivery, while the Secretary's service Paperwork Reduction Act of1980t44 order to avoid unnecessary and U.S.C. 3501 et seq.).* * * ** unsuspected exposures to the public. copies of the same documents are sent by first-class (regular) mail. As a result, Regulatory Analysis List of Subjects in 10 CFR Part 2 the Office of the Secretary, which is responsible for maintaining the official The Commission and its Secretary Administrative practice and _l!ave a _demonstr11ted need for.receiving procedure, Antitrust, Byproduct docket of all adjudicatory proceedings as well as the Public DocumenfRooin, copies of filings in NRC adjiidfciatlons in material, Classified information, a more timely fashion. This rule change Environmental protection, Nuclear often does not receive these filings until several days after they have been *which requires service upon the materials, Nuclear power plants and Secretary of filings by the same or reactors, Penalty, Sex discrimination, received by the parties and the tribunals. Under these circumstances, it equivalent method that they ere served, Source material, Special nuclear upon the adjudicatory tribunal is the*

• material, Waste treatment and disposal. is difficult for the Office of the Secretary to mai.!!tain the official a~cy docket in. only means available to achieve this For the reasons set out in the a timely fashion. See 10 CFR 1.ZS and end.

preamble and under the authority of the 2.702.* Atomic Energy Act of 1954, as amended, Backfit Analysis* This addition to the Commission's. the Energy Reorganization Act of 1974, rules of practice requires that parties

• The NRC has determined that the as amended, and 5 U.S.C. 552, the NRC serve the Office of the Secretary in the backfit rule, 10 CFR 50.109, does not is adopting the following statement of same or equivalent manner that they apply to this final rule, and therefore, policy as Appendix C to 10 CFR Part 2. serve the tribunal before which the that a backfit analysis is not required for proceeding is being conducted. For this final rule, because these 54 FR24468 amendments do not involve any example, if a party serves lhe tribunal Published 6/7/89
• provisions which would impose backfits Effective 7 /7 /89 by express or ovemightmail, it should also serve the Secretary by express or as defined in 10 CFR 50.109(a)(1),

Fitness-for-Duty Programs overnight mail so that the Secretary will List of Subjects in 10 CFR Part 2 receive the pleading at approxin:i.ately See Part 26 Statements of Consideration the same time as the tribunal and the Administrative practice and other parties to the proceeding. procedure, Antitrust, Byproduct Likewise, parties could serve the material *. Classified information, 54FR26730 tribunal by hand while serving the Environmental protection, Nuclear Published 6/26/89 Secretary by telecopier or telefax. materials, Nuclear power plants and Effective 7 /26/89

• Again, this equivalent service will
• reactors, Penalty, Sex discrimination 10 CFR Part 2 ensure that the Secretary will receive Source materiel, Special nuclear '

copies of the pleadings at approximately material, Waste treatment end disposal. RIN. 31SO-AD22 the same time as the tribunal and the For the reasons set out in the other parties to the proceeding. This preamble and under the authority of the Manner of Service of Pleadings Upon change will allow the Secretary to Atomic Energy Act of 1954, as amended, the Secretary of the Commission maintain the official dockets in close. the Energy Reorganization Act of 1974, harmony and synchronization with the as amended, and 5 U.S.C. 552 and 553, AGENC.V: Nuclear Regulatory actual progress of.the tribunal's ' the NRC is adoptiµg the following Commission. proc~edings. * .. ___

• __: ___ _ .. ___ _ amepdment to 10 CFR'Part 2:.
• ACTION: Final rule. . The rule makes an exception for those 54FR27864 proceedings being held outside the  : Published 7 /3/89

SUMMARY

This final rule makes minor Washington, DC, area when the Effective 8/2/89 changes in the Commission's rules of

• adjudicatory tribunal Is physically practice by requiring that all parties in present in such a location. In those NEPA Review Procedures for Geologic NRC proceedings file copies of all cases, the rule allows parties who serve Repositories for High-Level Waste pleadings filed with any agency the tribunal end the oppoJing parties by See Part 60 Statements of Consideration 2-sc-so**

PART 2 STATEMENTS OF CONSIDERATION 54 FR 29008 Published 7 /11 /89 10CFR Part 2 RIN 3150*AD22 ' Manner of Service of Pleadings Upon

• the Secretary of the Commission; Correction AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule; correction.

SUMMARY

This document corrects e final rule published on June 26, 1989 (54 FR 26730); thafreguires all parties in NRC proceedings to file copies* of ell pleadings filed with any agency adjudicatory tribunal with the Office of the Secretary In the same or equivalent manner in which they were filed with the tribunal. The action is necessury to correct en omission in the mailing address for the Secretary of the Commission, and ,he telecopier phone number.

FOR FURTHER INFORMATION .CONTACT: : * . , . Michael T."Lesa,;, Acting Chief, Rules ** Review Section, Regulatory*Pub}icati.ons Branch, Division of Freedom of Information and Publications Services, Office of Administration, U.S. Nuclear Regulatory. Commission, Washington,. DC 20555, Telephone: SOi-492-7758. In the June 26, 1989, edition of the Federal Register, on page 26731 make the following corrections: 2-SC-51

PART 2 STATEMENTS OF CONSIDERATION consideration of prior public comments,' issues, these commenters expressed the 54 FR 33168 the Commission published a notice of view that opportunities for full public Published 8/11/89 Effective 9/11/89 proposed rulemaking stating that it was participation in the licensing process considering amending certain provisions should be expanded, not reduced. Some 10 CFR Part2 of its rules of practice in order to commenters questioned the need for the RIN 3150-AC22, 3150-AAOS improve the licensing process for proposed changes. Others stated that nuclear power plants and inviting public the Commission's rules of practice Rules of Practice for Domestic comment (51 FR 24365, July 3, 1986.) The should be retained unchanged. Licensing Proceedings-Procedural proposed amendments, which were B. Comments on Specific Proposals, Changes In the Hearing Process initially developed by the Regulatory with Responses Reform Task Force, addressed specific AGENCY: Nuclear Regulatory aspects of the hearings process: The sections which follow contain a Commission. Admission of contentions; discovery description of each of the proposed ACTION: Final rule. against NRC staff; use of cross- amendments, a summary of the examination plans; timing of motions for comments received and an NRC

SUMMARY

The Nuclear Regulatory summary disposition; and limitations on response.

Commission is amending its Rules of intervenors' filings of proposed findings Practice to improve the hearing process 1. Intervention (10 CFR 2.714) Admission of fact, conclusions of law, and of Contentions with due regard for the rights of the appellate briefs. In addition to these parties. The amendments require a proposals, the Commission also The proposed amendments to 10 CFR person seeking to participate as a party requested comments on a series of 2.714 would raise the threshold for the in an NRC proceeding to file a list of related proposals developed by former admission of contentions to require the contentions with tlie presiding officer Commissioner Asselstine concerning the proponent of the contention to supply together with a brief explanation of the intervention process. The comment information showing the existence of a bases for each contention, a concise period expired October 17, 1986. More genuine dispute with the applicant on an statement of the alleged facts or expert than 150 comments, including a few late- issue of law or fact. The required opinion that support the contention and filed comments, were received from showing must include references to the which, at the time of the filing, the electric utilities, electric utility and specific portions of the application person intends to rely upon in proving nuclear power associations or their which are disputed. The contention must the contention at the hearing, and counsel, utility stockholders, counsel for also be supported by a concise references to the specific sources and NRC licensees, an architect-engineer, statement of the alleged facts or expert documents of which the person is aware intervenors in NRC proceedings, public opinion, together with specific sources and upon which he or she intends to rely interest groups, states, local and documents of which the petitioner is to establish such facts or expert governments, Indian tribes and aware, which will be relied on to opinions. The information submitted by interested individuals. Copies of all establish the facts or expert opinion. a potential intervenor must be sufficient comments received are available for Absent this showing, the contention will to show that a genuine dispute exists public inspection, and copying for a fee, not be admitted. Under the proposed between it and the applicant or licensee at the NRC Public Document Room at amendments, admission of a contention on an issue of law or fact. If the person 2120 L Street, NW., lower level, may also be refused if it appears fails to satisfy these requirements the Washington, DC. unlikely that the petitioner can prove a presiding officer shall not admit the set of facts in support of the contention contention. Other amendments are made II. Summary of Comments or if it is determined that the contention, to reduce unnecessary discovery, to A. General even if proven, would be of no describe procedures by which a consequence in the proceeding because presiding officer may require parties to Although objections were raised to some of the specific proposals, the it would not entitle the petitioner to file a description of the purpose and relief. Finally, the proposed amendments nature of questions which they intend to proposed rule received broad support from electric utilities, their counsel and would provide that a contention raising ask witnesses during cross-examination, only an issue of law will not be admitted to expand the time during which various industry groups. According to these commenters, the proposed rule for resolution in an evidentiary hearing motions to dispose of contentions but shall be decided on the basis of summarily and without a hearing may would streamlµie the hearing process and make it more efficient. States, local briefs and any oral argument that may be filed, and to limit an intervenor's be held. appeals and filings of proposed findings governments, public interest groups, intervenors and individuals generally Electric utilities, their counsel and of fact and conclusions of law to issues industry groups, for the most part, which that party actually placed in opposed the proposals on the ground that they would curtail the public's role supported this change, while controversy or sought to place in environmental and citizen action groups controversy in the proceeding. in the licensing process and meaningful public participation in licensing and state and local government EFFECTIVE DATE: September 11, 1989. representatives opposed the proposed FOR FURTHER INFORMATION CONTACT: proceedings would be eliminated. Noting the need for and importance of amendments raising the threshold for Stuart A. Treby, Assistant General the admission of contentions. Counsel, Rulemaking and Fuel Cycle unbiased factual information in reaching sound regulatory decisions and the Characterizing the proposed changes Division, Office of the General Counsel, respecting the admission of contentions U.S. Nuclear Regulatory Commission, effectiveness of intervenors in identifying and obtaining full as one of the most significant aspects of Washington, DC 20555; Telephone (301) the proposed rule, the commenters who 492-1636. consideration of vital health and safety favored adopting more stringent SUPPLEMENTARY INFORMATION standards of admissibility stated that

                                              *A detailed account of the background of this I. Background                               rulemaking Is set out in the preamble of the        the Commission's existing procedures On July 3, 1986, after extensive study,  proposed rule, see 51 FR 24365-24366, July 3, 1986. permitted too many insignificant, evaluation and review and careful 2-SC-52

PART 2 STATEMENTS OF CONSIDERATION meritless, hypothetical and time- engaged in developing and formulating never be satisfactorily resolved. This consuming contentions to be admitted those policies in the forum provided by could be highly detrimental to the public and that the proposed amendments the Commission for that purpose.

• health and safety.

would have the salutary effect of In response, the Commission would Asserting that the proposed standard requiring petitioners to know in advance note that the use of the terms "law, fact for admissibility of contentions is far of filing a petition to intervene what and policy" was not meant to change in more stringent than that applied by the issues they intended to litigate and how any manner the way Commission Federal courts, the commenters argued they planned to conduct the litigation. In regulations or policy statements are that, if promulgated, the standard would the opinion of some commenters, the dealt with in NRC proceedings. The have the effect of requiring persons proposed amendments, if vigorously terms were used merely to encompass seeking to participate in an NRC enforced, could become an important the variety of issues, often mixed proceeding to prepare and prove their tool in crystallizing disputes at an early factual, legal or policy issues, which can complete evidentiary case before any stage in the proceeding, thereby be the subject of contentions in NRC determination is made on their right to significantly improving the efficiency proceedings. However, to avoid any be a party to the proceeding. Under the and quality of the hearing process. The ambiguity about the manner in which

• proposed procedures, several commenters noted that the proposed policy issues are to be dealt with before commenters argued, petitioners would amendments should curtail the practice the NRC, the word "policy" has been not only be required to produce the of using discovery procedures to deleted from the final version of § 2.714. proof of their alleged facts in order to be develop contentions and that the Several commenters criticized the admitted to the proof-gathering and fact-proposed amendments would bring NRC language used in paragraph [b)[2) of finding process; licensing boards would practice more in line with Federal § 2.714 to describe the threshold of also be permitted to prejudge the practice under the Administrative admissibility on the ground that it was petitioner's evidence before the Procedure Act. The proposed unnecessarily redundant because it petitioner was granted standing to amendments wquld also, in one respect, included two separate standards of participate in the proceeding. Several conform NRC practice more closely to admissibility, i.e., [1) the existence .of a commenters took strong exception to the that permitted by the Federal Rules of genuine dispute with the applic!lnt on a provision in § 2.714(d)[2)[ii) which Civil Procedure. On this point, one material issue of law, fact or policy, and would permit presiding officers to bar commenter noted the similarity between [2) the information presented prompts an intervenor from participating in a Rule 12[b)[6) of the Federal Rules of reasonable minds to inquire further as to proceeding on the basis of a preliminary Civil Procedure and the provision in the validity of the contention. Some determination that "it appears unlikely proposed § 2.714[d)[2)[iii) under which a commenters opposed, while other that petitioner can prove a set offacts in presiding officer could refuse to admit a commenters favored, inclusion of the support of its contention."

contention upon a determination that "reasonable minds" standard. One In the opinion of some commenters, the contention, if proven, would be of no commenter noted that the genuine the requirement that petitioners must consequence in the proceeding because dispute standard is the same standard document and furnish evidence in it would not entitle the petitioner to used to determine standing and that if support of their contentions before they relief. this standard is applied as it has been in are entitled to participate in an Some of the proponents of the the past, adoption of the proposed adjudicatory proceeding and take proposed amendments expressed the amendments will have little practical advantage of the mechanisms normally view that the amendments should be effect. The Commission has concluded available to parties to such a proceeding further revised. Several commenters that describing the threshold for to obtain relevant documents and expressed the view that the proposed admissibility by two different phrases is information is patently unfair and amendments did not go far enough in unnecessary and could create confusion. constitutes a denial of due process. In that they failed to include more stringent Therefore the "prompts reasonable addition, they argue, contrary to the requirements respecting standing. minds to inquire further" language has intent of the present regulatory scheme, Several commenters questioned the been deleted from the final rule. one immediate effect of the proposed propriety of admitting contentions based Commenters opposing the proposed amendments would be to shift the on disputes on issues of policy. In the amendments objected on the grounds burden of proof from the license opinion of these commenters, it would that the proposed amendments were applicant to the intervenor. The be inappropriate for licensing and unnecessary, contrary to due process, comments also noted that under the appeal boards to decide policy issues. unduly burdensome, unfair and in Commission's regulations, license Policy and disagreements concerning violation of the provisions of section applicants are not required to furnish all policy should be addressed by the 189a of the Atomic Energy Act of 1954, the necessary documentation supporting Commission itself. According to these as amended. According to these the application at the time the commenters, to permit policy statements commenters, the proposed standard for application is first submitted. These which have been formally adopted by the admission of contentions is so circumstances, coupled with the more the Commission to be challenged in restrictive that it would be virtually stringent standard for the admission of licensing and regulatory proceedings impossible for persons seeking to contentions prescribed by the proposed devoted to other matters would be participate in an NRC adjudicatory amendments, would make it impossible inconsistent with current NRC practice proceeding to succeed in having their for intervenors to prepare and litigate a [see 10 CFR 2.758) which precludes contentions admitted with the result that fully definitive case. parties in any adjudicatory proceeding significant safety issues might not be Some commenters also argue that to involving initial licensing, except as fully explored or carefully reviewed. the extent that the proposed provided in § 2.758 [b), [c) and [d), from Instead of sharpening the issues in amendments would operate to bar challenging any Commission rule or dispute, the proposed amendments intervenors from participating in NRC . regulation. Instead, concerns respecting would simply eliminate certain issues adjudicatory proceedings, they would Commission policies should be raised at from further consideration with the contravene the provisions of section the time the Commission is actively result that the problems presented might 189a of the Atomic Energy Act of 1954, 2-SC-53

PART 2 STATEMENTS OF CONSIDERATION as amended, which states, in pertinent aware and on which the intervenor 398-99, 46 L. Ed. 2d 580, 96 S. Ct. 809 part: intends to rely in establishing the {1976). In any proceeding under this Act, for the validity of its contention. This Nor does the Commission believe that granting, suspending, revoking, or amending requirement does not call upon the this requirement represents that of any license or construction permit, or intervenor to make its case at this stage substantial a departure from existing application to transfer control, and in any of the proceeding, but rather to indicate proceeding for the issuance or modifies tion of practice. Under the Commission's rules and regulations dealing with the what facts or expert opinions, be it one existing requirements, as explained by activities of licensees, and in any proceeding fact or opinion or many, of which it is the Atomic Safety and Licensing Appeal for the payment of compensation, an award, aware at that point in time which Board, "[A]n intervention petitioner has or royalties under sections 153, 157, 186c., or provide the basis for its contention. an ironclad obligation to examine the 188, the Commission shall grant a hearing In addition to providing a statement of publicly available documentary material upon the request of any person whose facts and sources, the new rule will also pertaining to the facility in question with interest may be effected by the proceeding, require intervenors to submit with their sufficient care to enable the petitioner to and shall admit any such person as a party to list of contentions sufficient information such proceeding * * * . uncover any information that could (which may include the known serve as the foundation for a specific The commenters also opposed the significant facts described above) to proposed amendments because, in their contention. Neither Section 189a of the show that a genuine dispute exists Atomic Energy Act nor § 2.714 of the opinion, the amendments would, if between the petitioner and the applicant adopted, create a hopeless state of Rules of Practice permits the filing of a or the licensee on a material issue of vague, unparticularized contention, confusion respecting the matters to be law or fact. This will require the considered in determining whether a followed by an endeavor to flesh it out intervenor to read the pertinent portions through discovery against the applicant person should be entitled to participate of the license application, including the in a proceeding and the matters to be or Staff." Safety Analysis Report and the Duke Power Co. (Catawba Nuclear considered in reaching a decision on the Environmental Report, state the merits of the prot:eeding. In their view, Station, Units 1 and 2), ALAB-687, 16 applicant's position and the petitioner's NRC 460, 468 {1982); vacated in part on the standards used in deciding an issue opposing view. Where the intervenor on the merits are not appropriate for other grounds, CU-83-19, 17 NRC 1041 believes the application and supporting {1983). See also Ohio v. NRC, 814 F.2d deciding whether a particular person material do not address a relevant

• should be allowed to participate in a 258 {6th Cir. 1987). Under the current matter, it will be sufficient for the requirement to provide the basis for a proceeding. The commenters also took intervenor to explain why the exception to the cases cited in the contention, a petitioner must provide application is deficient. some sort of minimal basis indicating preamble of the proposed rule in support The Commission does not agree that of this proposal. this rule contravenes section 189a of the the potential validity of the contention.

Finally, some commenters objected to "The requirement generally is fulfilled Atomic Energy Act of 1954, as amended. the proposed amendments on the A member of the public has no absolute when the sponsor of an otherwise grounds that they are unnecessary. or unconditional right to intervene in a acceptable contention provides a brief According to these commenters, nuclear power plant licensing recitation of the factors underlying the presiding officers have adequate proceeding under the Atomic Energy contention or references to documents authority under the Commission's. Act. BP/v. Atomic Energy Commission, and texts that provide such reasons." present rules of practice to bar 502 F.2d 424 (DC Cir. 1974). Section 189a Texas Utilities Electric Co. (Comanche contentions which are frivolous and of the Act which provides for Peak Steam Electric Station, Unit 1), without merit. In general, when an effort intervention is subject to the ALAB-868, 25 NRC 912, 930 (1987). The has been made to apply the existing Commission's rulemaking power under revised rule does, however, overturn the requirements in a disciplined manner, section 161p and, thus, to reasonable holdings of Mississippi Power and Light presiding officers have experienced little procedural requirements designed to Co. (Grand Gulf Nuclear Station, Units 1 difficulty in determining whether a further the purposes of the Act. BPI v. and 2), ALAB-130, 6 ABC 423, 425-26 particular contention is meritorious and Atomic Energy Commission, supra, 502 (1973) and Houston Lighting and Power should be admitted as an issue in the F.2d at 427, 428; see also American Co. (Allens Creek Nuclear Generating proceeding. The commenters are firmly Trucking Ass'.ns, Inc. v. United States, Station, Unit 1), ALAB-590, 11 NRC 542, of the view that additional amendments 627 F.2d 1313, 1320-23 (DC Cir. 1980). 546-49 (1980). The Appeal Board found establishing more stringent standards Furthermore, the right to intervention in those cases that the current language for the admission of contentions are under section 189a for a member of the of 10 CFR 2.714 does not require a unnecessary. public is explicitly conditioned upon a petitioner to describe facts which would The Commission disagrees with the "request." .The proposed amendments be offered in support of a proposed assertions that the proposed would, in effect, provide that a "proper contention. The new rule will require amendments are unduly burdensome request" by a member of the public shall that a petitioner include in its and so restrictive that it will be virtually include a statement of the facts submission some alleged fact or facts in impossible for persons to have safety supporting each contention together support of its position sufficient to contentions admitted to an NRC with references to the sources and indicate that a genuine issue of material proceeding. documents on which the intervenor fact or law exists. Under these new rules an intervenor relies to establish those facts. Finally, We reject the arguments that the new will have to provide a concise statement the Administrative Procedure Act rule is unfair and a denial of due process of the alleged facts or expert opinion creates no independent right to because it requires intervenors to allege which support the contention and on intervene in nuclear licensing facts in support of its contention before which, at the time of filing, the proceedings. See Easton Utilities the intervenor is entitled to discovery. intervenor intends to rely in proving the Commission v. Atomic Energy Several months before contentions are contention at hearing, together with Commission, 424 F.2d 847, 852 (DC Cir. filed, the applicant will have filed an references to the specific sources and 1970){en bane); cf. National Coal application with the Commission, documents of which the intervenor is Operators' Assn. v. Kleppe, 423 U.S. 388, accompanied by multi-volume safety 2-SC-54

PART 2 STATEMENTS OF CONSIDERATION and environmental reports. These and explaining why they have a on request, or on a bald or conclusory documents are available for public disagreement with it. allegation that such a dispute exists. The inspection and copying in the The Commission also disagrees with protestant must make a minimal Commission's headquarters and local the comments that § 2.714(b)(2)(iii) , showing that material facts are in public document rooms. Admitted should permit the petitioner to show that dispute, thereby demonstrating that an intervenors will continue to be able to it has a dispute with the Commission "inquiry in depth' is appropriate." 627 use discovery to develop the facts staff or that petitioners not be required F.2d at 251. The Commission's rule is necessary to support its case. However, to set forth facts in support of consistent with these decisions. the rule will require that before a contentions until the petitioner hes Several commenters were concerned contention is admitted the intervenor access to NRC reports and documents. that the standard "dispute on a genuine have some factual basis for its position Apart from NEPA issues, which are issue of material law or fact" is the and that there exists a genuine dispute specifically dealt with in the rule, a same one to be used by the presiding between it and the applicant. It is true contention will not be admitted if the officer in ruling on motions for summary that this will preclude a contention from allegation is that the NRC staff has not judgment filed under 10 CFR 2.749. The being admitted where an intervenor has performed an adequate analysis. With Commission expects that at the no facts to support its position and the exception of NEPA issues, the sole contention filing stage the factual where the intervenor contemplates using focus of the hearing is on whether the support necessary to show that a discovery or cross-examination as a application satisfies NRC regulatory genuine dispute exists need not be in fishing expedition which might produce requirements, rather than the adequacy affidavit or formal evidentiary form and relevant supporting facts. The of the NRC staff performance. See, e.g., need not be of the quality necessary to Commission does not believe this is an Pacific Gas and Electric Co. (Diablo withstand a summary disposition appropriate use of discovery or cross- Canyon Nuclear Power Plant, Units 1 motion. At the summary disposition exarnination. BPI v. Atomic Energy and 2), ALAB-728, 17 NRC 777, 807, stage the parties will likely have Commission, 502 F.2d 424, 429 (DC Cir. review declined, CLI-83-32, 18 NRC 1309 completed discovery and essentially 1974). The Commission believes it is a (1983). 2 For this reason, and because the will have developed the evidentiary reasonable requirement that an license application should include support for their positions on a intervenor be able to identify some facts sufficient information to form a basis for contention. Accordingly, there is much at the time it proposes a contention to contentions, we reject commenters' less likelihood that substantial new indicate that a dispute exists between it suggestions that intervenors not be information will be developed by the and the applicant on a material issue. required to set forth pertinent facts until parties before the hearing. Therefore, the staff has published its FES and SER. the quality of the evidentiary support The Commission agrees with The new rule provides that in ruling commenters that the new rule may provided in affidavits at the summary on the admissibility of a contention, the require persons seeking intervention to disposition stage is expected to be of a presiding officer shall not admit a do more work at an earlier stage of the higher level than at the contention filing contention to the proceeding if the stage.

• proceeding than under the current intervenor fails to set forth the regulations. However, the Commission contention with reasonable specificity The proposed rule also provided in disagrees with the conclusion reached or establish a basis for the contention. § 2.714(d)(2) that the presiding officer by some commenters that the rule shifts In addition, the contention will be would refuse to admit a contention the burden of proof to potential dismissed if the intervenor sets forth no where:

intervenors or should be rejected facts or expert opinion on which it [ii) It appears unlikely that petitioner can because of the burden placed on prove a set of facts in support of its intends to rely to prove its contention, or contention: or potential intervenors. The revised rule if the contention fails to establish that a does not shift the ultimate burden of [iii) The contention, if proven, would be of genuine dispute exists between the no consequence in the proceeding because it persuasion on the question of whether intervenor and the applicant (or, would not entitle petitioner to relief. the permit or license should be issued; it possibly, the NRC staff on a NEPA rests with the applicant. Rather, the rule The requirement in [iii) above was issue). Contrary to the assertions of intended to parallel the standard for only details what is expected of en some commenters, the use of this intervenor es pert of its burden of dismissing a claim under Rule 12(b)(6) of standard for the admission of the Federal Rules of Civil Procedure. corning forward with information in contentions has been supported by the support of e proposed contention. Cf The intent of Rule 12(b)(6) is to permit Federal courts in numerous instances. dismissal of a claim where the plaintiff Consumers Power Co. (Midland Plant, Vermont Yankee Nuclear Power Corp. Units 1 and 2), ALAB-123, 6 AEC 331, would be entitled to no relief under any

v. NRG, 435 U.S. 519 (1978); Independent set of facts which could be proved in 345 (1973). The Commission believes it Bankers Ass'n v. Board of Governors, to be a reasonable requirement that support of his claim.

516 F.2d 1206 (D.C. Cir. 1975); A number of commenters disagreed before e person or organization is Connecticut Bankers Assn v. Board of admitted to the proceeding it read the with the language of proposed Governors, 627 F.2d 245 (D.C. Cir.1980). § 2.714(d)(2)(ii); specifically, the phrase portions of the application (including the The court in the latter case emphasized applicant's safety and environmental "appears unlikely", because it suggests that "a protestant does not become that the presiding officer is to prejudge reports) that address the issues that are entitled to an evidentiary hearing merely the merits of a contention before an of concern to it and demonstrate that a dispute exists between it and the intervenor has an opportunity to present applicant on a materiel issue of feet or

• The Commission recognizes that in 1ome a full case. The Commission recognizes law. Many intervenors in NRC cases the applicant'* and the NRC staff', the potential ambiguity of the proposed position on a particular i111tue will be 1imilar. phrasing and the paragraph has been proceedings already ably do what is Although under these rule1 the contention intended by this requirement: they must be framed to disagree with the deleted.

review the application before submitting applicant'* po1ition. an intervenor'* Issues which arise under the National contentions, explain the basis for the evidentiery presentation in 11ucb ca1es at the Environmental Policy Act (NEPA) are contention by citing pertinent portions hearing may be directed towards both the specifically addressed in the new rule. stafr and the applicant to the extent required for a consistent litigation strategy. 2-SC-55

PART 2 STATEMENTS OF CONSIDERATION NEPA requires the NRC to analyze the exempt environmental matters as a The intent of the proposed rule in environmental impact of its proposed class from the application of those § 2.714(d)(2)(iv) was that purely legal major actions significantly affecting the standards. contentions, which occur rarely, may be quality of the environment. In the One commenter objected to the admitted as issues in the proceeding. licensing context, the NRC fulfills this inclusion of the word "concise" in However, they will not be a part of an obligation by issuance of a draft paragraph (b)(2)(ii) of§ 2.714 on the evidentiary hearing, but rather, will be environmental impact statement (DES) ground that it "could be misconstrued as handled on the basis of briefs and oral and a final environmental impact requiring brevity." The commenter arguments. A new paragraph (e) has statement (FESJ. Any license or permit added that a word or phrase which been added to § 2.714 to clarify this application subject to NEPA's impact connotes sufficient detail to inform the intention. statement requirement must contain a reader of the various factual or other The Commission is also making a complete Environmental Report (ER) bases for the contention should be used clarifying change to 10 CFR 2.714(c). which is essentially the applicant's instead. That paragraph provides that any party proposal for the DES. (See 10 CFR 51.20 The Commission disagrees with the to a proceeding may file an answer to a and 51.40). As described in view of the commenter that retention of petition to intervene within certain time § 2.714(b)(2)(iii), an intervenor will be the word "concise" in paragraph periods. Prior to 1978, a person required to demonstrate that a genuine (b)(2)[ii) of § 2.714 could be misleading. petitioning to intervene in an NRC dispute exists between it and the In the opinion of the Commission, proceeding was required to state not applicant or the staff on a material issue paragraph (b)(2)[ii), when read in only how his or her interest might be of fact or law which relates to NEPA. context with paragraphs (b)[2)(i) and affected by the results of the proceeding, Several commenters took exception to (b)(2)(iii) of§ 2.714, clearly identifies the but also the basis for his or her the provisions in paragraph (b)(2)(iii) of kind of detailed information which a contentions with regard to each aspect § 2.714 relating to environmental petitioner must provide to enable the on which he or she desired to intervene. matters, claiming, among other things, Commission or the presiding officer to Under that scheme for petitions for that those provisions appear to determine whether a contention should leave to intervene, it was clear that a authorize petitioners to submit late-filed be admitted in a particular adjudicatory response filed pursuant to 10 CFR contentions based on the NRC staffs proceeding. 2.714(c) could be a response to the environmental review documents. One Several commenters suggested that contentions and the bases for any commenter recommended that the paragraph (b)(2)(iii) of§ 2.714 should contentions proposed. In 1978, the Rules discussion of NEPA issues in require that the issue being raised is not of Practice were amended to provide § 2.714(b)(2)(iii) be deleted as only in dispute but is also "material", that a petitioner could file his or her unnecessary, noting the availability of a that is, that the resolution of the dispute contentions separately in a supplement right, based on past precedents, to would make a difference in the outcome to the original petition to intervene, not amend or supplement environmental of the licensing proceeding. The later than fifteen days prior to the documents to reflect new information. Commission concurs that that was the special prehearing conference held The commentere disagreed on whether intention of the requirement, as is pursuant to 10 CFR 2.751a or the first contentions relating to environmental demonstrated by the the language of prehearing conference. Section 2.714(c) matters should focus on environmental paragraph (d)(2)(i) of § 2.714, which was not amended to make it clear that reports submitted by the applicant or provided for "determining whether a answers to these supplemental petitions environmental documents prepared by genuine dispute exists on a material containing contentions and their bases the NRC staff. issue" of law or fact. Section were permitted as well as to the original The Commission has reexamined 2.714(b)(2)(iii) has been revised to petition to intervene. However, the those portions of§ 2.714(b)(2)(iii) which include the word "material". practice before the Commission since relate to the filing of environmental One commenter expressed the view 1978 has been that answers to contentions in the light of these that there was very little likelihood that supplements to petitions to intervene as comments and has concluded that the contentions involving purely legal issues well as to an initial petition to intervene text of the rule as presently drafted is would be submitted (in most cases are permissible within the timeframe clear and that no further revision is contentions raise mixed questions of established in § 2.714(c). Language is needed. The rule makes clear that to the law and fact) and therefore paragraph being added to § 2.714(c) to make it extent an environmental issue is raised (d)(2)(iv) of§ 2.714 is unnecessary and clear that answers to both initial

• in the applicant's ER, an intervenor must should be deleted. Another commenter petitions and any supplements thereto file contentions on that document. The disagreed with the form of are permissible.

NRC staff in its DES or FES may well § 2.714(d)(2)(iv). As written, it conflicts Former Commissioner Asselstine also take a different position than the with the proposed definition of a suggested in the proposed rule applicant. 10 CFR 2.714(b)(2)(iii) contention in 10 CFR 2.714(b)(2} as a additional changes in the Commission's explicitly recognizes for environmental statement of "law, fact or policy". While rules on intervention and public matters existing precedent regarding the not opposed to the intent of the participation in the licensing process. right to amend or supplement proposal, the commenter recommended Changes to 10 CFR 2.104, 2.714, 2.751a contentions based on new information. that this section be revised to read as and 2.752 were proposed to require early The Commission wishes to emphasize follows: publication of notice of receipt of an that these amendments to If the Commission, the presiding officer, or application, to specify the time within § 2.714(b)(2)(iii) are not intended to alter the Atomic Safety and Licensing Board which petitions for intervention can be the standards in § 2.714(a) of its rules of designated to rule on the admissibility of filed, to separate the decision on contentions determines that any of the practice as interpreted by NRC caeelaw, admitted contentions constitute pure issues standing from the decision on the e.g., Duke Power Co., (Catawba Nuclear of law, those contentions must be decided on validity of contentions, to provide for a Station, Units 1 and 2), CLl-83-19, 17 the basis of briefs or oral argument according mandatory ninety day period of time to NRC 1041 (1983), respecting late-filed to a schedule determined by the Commission draft contentions, and to create a two contentions nor are they intended to or the presiding officer. stage screening process to determine 2-SC-56

PART 2 STATEMENTS OF CONSIDERATION whether or not a genuine issue of a either NRC public document rooms or in proposed amendments were criticized material fact exists with respect to each public compilations and providing because they would defeat the basic contention. sufficient information to enable a party purpose of discovery--to obtain relevant Those commenters who favored to locate the material requested is information on issues raised in and former Commissioner Asselstine's considered adequate. The second pivotal to the proceeding, thereby proposals felt they would improve the ground would limit the scope of an preventing surprise at trial. efficiency of the hearing process without interrogatory by barring the requestor A number of commenters noted that imposing additional burdens on from asking the NRC staff to explain its the staff is a major if not crucial party intervenors. They were thought to be reasons for not using data, assumptions because it is the party with the technical logical and easy to understand and dealt and analyses where the NRC staff did resources and expertise. Intervenors with the fact that although the hearing not rely on this information in its need full opportunity to understand and clock begins when an application is review. Persons submitting question the staffs position. Moreover, docketed, much of the documentation of interrogatories would also be prevented the staff should be held accountable for interest to intervenors may not be ready from asking the staff to perform its actions. This proposal could restrict for some time. Some commenters felt the additional research or analytical work the flow of information and would place proposals would encourage informal beyond that needed to support the NRC the burden on intervenors to locate discussion and resolution of disputes staffs position on any particular matter. information bearing on the staffs and were generally more equitable and Requesters could continue to submit position. This would increase fair. interrogatories seeking to elicit factual intervention costs. The current rules Those commenting unfavorably on the information reasonably related to the provide ample protection for the staff. If Asselstine proposals felt they would NRC staffs position in the proceeding, anything, discovery against the staff exacerbate the current problems of including data used, assumptions made should be increased rather than instability and unpredictability in the and analyses performed by the NRC decreased. hearing process. The use of provisional staff. A number of commenters opposed to admission and the notice of receipt The commenters who supported the the rule change expressed concerns proposals would only add additional proposed amendments did so because similar to those described above made steps to the hearing process without they believed it would be advantageous by supporters of the rule. They were increasing its effectiveness. They felt if certain established and well concerned that the proposed rule would presiding officers already have the recognized precedents commonly used improperly shield the staff from its authority to reject petitions for in NRC adjudicatory proceedings were obligation to explain and justify its intervention prior to submission of codified in NRC's Rules of Practice. position. The stated rationale for *the contentions and do so. These proposals According to the commenters, the rule-caselaw on the issue of requiring would substantially increase the number perceived advantages of codification extensive independent research-does of parties and contentions without any included conservation of increasingly not support the proposal in the view of countervailing benefit. Other limited NRC staff resources, increased one commenter. The staff may have commenters, although favoring the use of accepted legal procedures and examined alternative assumptions, data approach of Commissioner Asselstin~. reduction of delays in the application and analyses and chosen not to rely on believed discovery should take place review process. One commenter stated them. Interrogatories asking the staff to before contentions and that too much that these procedures should not be provide an explanation for why one discretion was being given to the limited to the NRC staff but that they presiding officer to dismiss contentions. should be equally available to all parties particular source of data or analysis The Commission has considered the to any NRC adjudicatory proceeding. was chosen is fair discovery. comments on Commissioner Asselstine's Several commenters who opposed the Several commenters argued that proposals and concluded that it does not rule, also made this comment. parties are entitled to know not just the wish to take any additional action One commenter supported facts supporting the staffs position but regarding these proposals at this time. codification in principle but pointed out whatever facts are in the staffs Several of them address the same that the proposed amendments as possession. It is unreasonable and aspects of the hearing process, e.g. the presently drafted, do not accurately unfair to limit discovery to information filing of contentions, as the proposed reflect existing precedent. For example, that supports the staffs position. rule changes made by the Commission, the proposed amendments convert a Relevant facts which do not support the and, the Commission has chosen to statement indicating the availability of a staffs final position could be concealed. adopt those rules essentially as document, long recognized as an A number of commenters were also proposed. acceptable response, into an acceptable critical of the assertion that this rationale for not responding. The proposal was an attempt to conserve

2. Subpoenas (10 CFR 2.720) Discovery staff resources. Several asserted that the Against NRC Staff commenter also took issue with the prohibition against the submittal of existing rules already give the staff The proposed amendments to 10 CFR questions requesting the NRC staff to special status in responding to 2.720(h)(2)(ii) would codify two existing explain why it did not use certain discovery. If the staff is to remain a full grounds used by NRC staff to object to alternative data or assumptions or party, it should be equal not privileged.

responding to interrogatories from perform certain analyses. According to Commission arguments that this rule is parties in NRC adjudicatory the commenter, questions of this type necessary to preserve scarce staff proceedings. This change would enable would not require the staff to perform resources are not consistent with the staff simply to cite the provisions of additional research; the staff need only positions previously taken with respect the rule in objecting to a request, respond by providing an explanation. to other parties to NRC proceedings. The thereby conserving limited staff time The commenters who opposed placing Commission has consistently taken the and resources. The first ground for additional restrictions on interrogatories view that parties are not excused from objecting reflects existing NRC practice to the NRC staff did so for a variety of hearing obligations due to a lack of in which a response stating that the reasons. Considered unfair, unnecessary resources. Inhibiting the flow of requested information is available in and unwise as a matter ofpoijcy, the information is not an appropriate way to 2-SC-57

PART 2 STATEMENTS OF CONSIDERATION deal with scarce staff resources. The they are being incorporated into 10 CFR staff resources involved in time Commission should either seek ,2.740, the general provisions governing consuming discovery procedures. additional appropriations or eliminate discovery rather than into § 2.720 as The second proposed change to party status for the staff. proposed. discovery procedures does not, despite If the Commission wants to Commission caselaw has long suggestion by some commenters to the institutionalize the two objections established that while in response to a contrary, add any new bases for discussed in the proposal they should be discovery request a party must reveal objecting to interrogatories. The change made applicable to all parties not just information within its possession and merely clarifies current practice that the staff. Commenters representing control, which may entail some when a document is reasonably applicants asserted that discovery investigation to determine what available from another source, such as against them has many of the same information is in the party's possession, the Commission's Public Document objectionable qualities--asking for the party is not required to engage in Room or local Public Document Room, documents already on the docket or independent research.Pennsylvania the information need not be provided in requesting the applicant to perform new Power and Light Co. (Susquehanna response to the interrogatory. A analyses. These commenters saw no Steam Electric Station, Units 1 and 2, sufficient answer to such an justification for codifying the NRC ALAB-613, 12 NRC 317,334 (1980). The interrogatory is the location, title and a caselaw solely for the benefit of the breadth of permissible interrogatories is page reference to the relevant document. staff. limited to those which address factual A number of commenters were also information related to a party's position 3. Evidence (10 CFR 2.743) Cross-critical of the second element of the in the proceeding, such as data used, Examination proposed rule which would codify the assumptions made, and analyses The proposed amendment to 10 CFR existing NRC practice that an adequate performed by the party. 2.743 would require a party to a discovery response is to state that the A party must provide the basis for its proceeding to obtain the permission of requested information is available in position on an issue in the proceeding, the presiding officer in order to conduct public documenr rooms or other public but the Commission does not believe cross-examination and would bar the compilations. Several commenters noted that a party should be called upon presiding officer from considering any that this proposal does more than just through the discovery process to explain request to cross-examine unless the codify existing practice. If that were all why it did not use other data or be request was accompanied by a cross-it did, the basis for it is weak, because required to perform additional studies. examination plan containing specified citing a rule rather than caselaw is not a Interrogatories which elicit what data information. The required plan would meaningful reduction in staff workload. include a brief description of the issues the party has relied on and why are The proposal converts a method of acceptable. Interrogatories which ask a on which cross-examination would be response (citation to a specific conducted and*a proposed line of document) into grounds for not party to describe reasons why other data were not relied upon in developing questions to achieve stated objectives responding. Under the proposed rule the a party's position will not be together with the expected answers. The Licensing Board must determine if cross-examination plans would be kept information is reasonably obtainable permissible. So long as prior to the trial, from the public document room or parties have an opportunity to learn confidential until the presiding officer another source. But the Licensing Board what another party has done or what issued his or her decision. won't readily be able to determine this information that other party has to The commenters who supported the on its own. The staff might as well provide the basis for its position, the proposed amendments believed the respond at the outset with the party seeking discovery will be able to requirement for a plan would encourage information which constitutes an show in the hearing what, in its view, parties to think out their case in adequate response under existing the other party should have done or why advance and would lead to better practice-title, page reference and its position is incorrect. By eliminating questions and a shorter proceeding. The location of document-rather than object burdensome interrogatories the proposed changes would add structure and become involved in a round of Commission will conserve not only its to cross-examination and decrease pleadings to determine the stafrs duty own staff resources, but provide a fair repetitive and cumulative questions. to respond. hearing process for all parties. Some noted that cross-examination Several commenters objected to the These principles are particularly plans are essentially already standard proposal because of the impact they felt important when applied to the NRC practice, while others indicated their it could have on specific types of

• staff. To the extent that discovery elicits belief that the proposed changes would proceedings. One commenter objected otherwise unavailable factual improve the Board's ability to control to limitations on interrogatories to the information concerning the basis for the proceedings. One commenter, in staff in enforcement proceedings staffs position on a particular issue in a supporting the proposal, noted that the regarding alternative assumptions and proceeding, a party should be better NRC was within its authority to limit analyses not relied on. The concern was prepared for trial. At the same time, the cross-examination to cases where it is that if the staff refused to rely on a staff should be able to produce the required for full and true disclosure of particular analysis performed by the factual information requested with the facts; nothing in the Atomic Energy licensee or its contractor in determining minimal disruption of its limited Act or the Administrative Procedure Act compliance, litigation of the issue could resources. Staff documents relevant to a guarantees an absolute right to cross-be protracted if the staff were not proceeding are publicly available as a examine witnesses. Seacoast Anti-required to address it during discovery. matter of course unless there is a Pollution League v. Castle, 572 F.2d 872, The Commission has decided to adopt compelling justification for their 880 (1st Cir. 1978); cert. denied, 439 U.S.

the proposed changes to its discovery nondisclosure. These publicly available 824 (1978). procedures; however, the changes will documents reasonably disclose the Several of these same commenters apply to all parties to NRC proceedings, basis for the stafrs position. Thus believed the Commission's.proposed not just to the NRC staff. Because of this formal discovery against the staff may changes did not go far enough. One expanded applicability of the changes, legitimately be narrowed to minimize asserted that the proposal would not 2-SC-58

PART 2 STATEMENTS OF CONSIDERATION change the hearing process but would large amount of direct testimony. nuclear power plant. Another only increase procedural requirements lntervenors are more likely to make commenter asserted that it would that will do little absent a vigilant their case on cross-examination because violate due process requirements if

• presiding officer. The Commission they lack the resources to produce their proceedings to impose civil penalties as should only permit cross-examination if own witnesses. well as other enforcement proceedings the points to be made could not be A number of commenters also are not excluded from the rule.

achieved by written testimony. Under opposed the rule as unnecessary . Several objections to specific such an approach, cross-examination because the existing rules, 10 CFR 2.718 ' elements of the proposal were also would be reserved for impeaching and 2,757, are more than sufficient to noted. Many felt fifteen days to review credibility. Several suggested that a control cross-examination. The conduct prefiled testimony and prepare cross-party's cross-examination should be of a hearing and the scope and amount examination plans was insufficient. A limited to issues or contentions that the of cross-examination are traditionally number of commenters objected to the party had placed in controversy. within the presiding officer's discretion. requirement that the plans include not Another suggested that if more than one One commenter noted that prefiled only questions but also the expected interested party had raised an issue, cross-examination plans are essentially answers to questions. Most felt a lead responsibility for litigating it should already standard practice. Another statement of objectives and a proposed be assigned to one party. stated that such requirements are line of questions was sufficient for a One commenter stated that this unnecessary for experienced counsel Board to determine relevancy. If proposal was so watered down from the and unenforceable against others. answers are required, then a party is in Commission's earlier proposal in its Several noted that the proposal could effect limited to asking questions for Advanced Notice as to be almost waste more time than it would save.by which he or she already knows the meaningless. The Board should permit creating litigation of the cross- answers. A requirement for prefiled cross-examination only where, based on examination plans and by creating a questions and answers would unfairly written evidence, there is a genuine and new area for appellate litigation. The limit the scope of cross-examination substantial issue of fact and resolution remedy is for the board to control the because it would not allow questioners would be substantially assisted by hearing, not add new paperwork to follow up on the unexpected. Cross-cross-examination. This commenter also requirements on counsel. examination is dynamic and litigants believed that the rule should provide for Another commenter took a slightly need the flexibility to try different tacks. establishing time limits and noted that different approach in opposing the The logical extension of the proposed requiring and enforcing time limits is proposed rule. This commenter felt there requirement would be plans for redirect routine in Federal courts and other were preferable means to limit and recross-examination which would administrative agencies. argumentative and unnecessary cross further delay a proceeding. Several Commenters opposed to the proposed examination. Parties should be limited commenters also noted their belief that rule had concerns both with the to litigating only their own contentions this requirement could have a negative proposal as a whole and with specific and only their stated interest in the impact on discovery. They feared it aspects of it. Several asserted that contention. If parties have a common could encourage a lack of full and cross-examination is a fundamental interest, their contentions may be jointly prompt response to discovery by right, and is especially important in NRC admitted and lead responsibility applicants in order to make it difficult proceedings which deal with matters of assigned for litigating the contention, for intervenors to file adequate plans public health and safety. In their view, including cross-examination. Rather and, consequently, to conduct cross-the public interest in a full look at safety than develop more paperwork, the examination. matters outweighs an interest in Commission should simply reiterate that The Commission believes that cross reducing a cluttered record. The bearings be conducted in strict examination plans can have a very proposal seeks to gain efficiency at the accordance with the NRC's evidentiary

• beneficial impact on the conduct of a expense of quality decision-making and practice. hearing by encouraging parties to the openness of the process. To restrict One commenter questioned whether a develop and evaluate the objectives cross-examination is to negate the Board in rejecting a cross-examination they expect their cross-examination to purpose of adjudicatory proceedings--to plan would not be prejudging an issue achieve and by giving the presiding adjudicate disputed facts. The purpose because the presiding officer might not officer the necessary information to of cross-examination is to explore understand the party's overall litigation effectively manage the proceeding. The credibility, inconsistency and bias. strategy. Another questioned whether Commission disagrees with those Effective cross-examination requires an NRC can legally require a party to commenters who believe that the use of element of surprise and the ability to produce its workproduct to the Board cross-examination plans will sacrifice shift direction. One commenter asserted and ultimately to other parties. On the the quality or openness of its that the stated reliance on caselaw is other side, one commenter expressed decisionmaking for the sake of misplaced. While the caselaw does concern that the filing of plans in efficiency. Cross-examination plans support requiring parties to demonstrate confidence with the Board could unfairly have been used effectively in a number the need for cross-examination, it has influence the Board because parties of Commission proceedings. We do not never suggested that barriers may be. could expound their theory of the case believe it is unduly burdensome to used to actively preclude the public under the guise of describing objectives require a party to a proceeding to litigant from participating. to be achieved during cross- examine prefiled testimony sufficiently Several commenters argued that the examination. to be able to articulate to the presiding proposal imposes a disproportionately One commenter argued that the officer the nature of the questions the severe impact on intervenors. Some proposed rule change violates the party believes are necessary to argued that the proposed rule was a requirements of the National illuminate the issues of concern to it.

blatant attempt to limit the record to Environmental Policy Act [NEPA) for However, because the usefulness of this testimony prepared by applicant and full consideration of all environmental procedure is highly dependent upon the staff who have the resources to file a impacts of a decision to license a circumstances of a particular 2-SC-59

PART 2 STATEMENTS OF CONSIDERATION proceeding, the final rule has been intent of the requirement *was to help the cross-examination plans. The changed to give the Presiding Officer presiding officer understand more easily Commission agrees that civil penalty discretion to require submittal of the how the proposed line of questions proceedings as an additional type of plans. would achieve the stated objective. We enforcement proceeding should be The regulation makes clear that have concluded, however, that the included within these exemptions. The parties are entitled to conduct such statement of objectives can provide final rule has been revised to clarify the cross-examination, in accordance with a sufficient notice to the presiding officer intended exemptions and to include civil plan if required by the Presiding Officer, of the party's intentions and the final penalty proceedings within the as is necessary for full and true rule deletes the requirement to include exemptions. disclosure of the facts. This is the in the plan expected responses to Several changes of a clarifying nature standard set forth in section 7(c] of the proposed questions. have been made to the rule as proposed. Administrative Procedure Act, 5 U.S.C. Several commenters were also 10 CFR 2.743(b}[2}[iii) has been modified 556(d] and existing§ 2.743[a]. That concerned that 15 days was insufficient to indicate that the presiding officer is to provision has never been understood to time to examine testimony and prepare keep the cross-examination plans in confer unfettered rights to cross- cross-examination plans. Deleting the confidence until the initial decision on examine witnesses. See Seacoast Anti- requirement to include postulated the matter being litigated has been Pollu.tion League v. Costle, 572 F.2d 672 answers should eliminate much of the issued. The language describing how the [1st Cir. 1978); cert. denied, 439 U.S. 824 difficulty which commenters identified plans are to become part of the official [1978); Northern States Power Co. for preparation of the plans. Therefore, record has also been clarified. [Prairie Island Nuclear Generating Plant, we are retaining the 15 day prefiling Units 1 and 2), ALAB-244, 8 AEC 857, requirement. However, language has 4. Authority of Presiding Officer to 867 n. 16 (1974), reconsideration denied, been added to § 2.743[b][2) to indicate Dispose of Certain Issues on the ALAB-252, 8 AEC 1175, affd., CLI-75-1, 1 that the schedule for filing cross- Pleadings [10 CFR 2.749} Summary NRC 1 [1975). Tb.e standard in the rule examination.plans is to be established Disposition will assure that issues are appropriately by the Presiding Officer. This will assure The proposed amendment to examined and it is also consistent with that the presiding officer will have § 2.749[a) would permit motions for the Commission's obligations under sufficient time after filing of testimony summary disposition to be filed at any NEPA to consider the environmental but before the hearing to review. the time during the proceeding, including impacts of a decision. plans and make any necessary rulings. It will also permit the Presiding Officer to during the hearing. Current rules provide We do not believe, as suggested by that summary disposition motions shall some commenters, that a more accomodate any unique circumstances of a particular proceeding. be filed within such time as may be restrictive test for cross-examination, fixed by the presiding officer and also e.g. where genuine and substantive Several commenters suggested that provides that the presiding officer may issues will be substantially assisted by the Commission should impose strict dismiss motions filed shortly before the cross-examination, is appropriate. The limits on when cross-examination will hearing commences if responding to or option of requiring use of cross- be available, e.g., for impeaching ruling on the motion would divert examination plans together with the

• credibility or where a genuine and discretion granted to the presiding substantive issue is substantially substantial resources from the hearing.

The proposed change is*intended to give officer elsewhere in the regulations to assisted by cross-examination, and that limit unnecessary, argumentative or it should limit the issues on which an parties maximum flexibility to file such duplicative cross-examination provide intervenor may cross-examine and motions and to terminate litigation at adequate measures to control the assign lead r~sponsibility to a party any point in the proceeding when it conduct of cross-examination. when several have raised the same becomes apparent that no genuine issue issues. The agency's rules currently of material fact remains in dispute. This regulation will not inhibit a party's ability to use the element of authorize a presiding officer to Those commenters who favored the surprise or shift direction as the cross- consolidate parties and limit or proposed change felt that it would help examination progresses. When a plan is consolidate cross-examination.10 CFR simplify and rationalize the hearing required, parties must submit objectives 2.715a, 2.718 and 2.757. The Commission process by preventing unnecessary and a proposed line of questions. They believes it is desirable to retain the litigation. Resolution of issues would be are not required to submit all of the presiding officer's flexibility to decide permitted at any point where it became questions to be asked. If the objectives whether such consolidation is apparent further hearing is unnecessary. are sufficiently developed and appropriate and therefore, has not Thus, the proposal could expedite described, there will be no impediment limited the presiding officer's discretion elimination of frivolous contentions. to shifting the direction of questioning in in this regard. Another commenter pointed out that response to the answers received One commenter noted that civil § 2.749[c) would still be available to because the presiding officer will be penal.ty and enforcement proceedings protect a party who for valid reasons aware of the ultimate objective of the should be excluded from these could not respond to a motion for questioner or be able to ascertain requirements. As drafted, proposed summary disposition, and would thus through brief queries of the cross- paragraph (b)(3) of§ 2.743 provided that provide sufficient protection against examiner why the change in direction is paragraphs (b)(1} and [2} of the section inopportune motions. appropriate. It is also noted that the do not apply to proceedings under Several commenters recommended plans are required to be kept subpart B of this part for modification, that the proposal be clarified to provide confidential by the presiding officer. The suspension, or revocation of a license. that during a hearing, where cross-Commission does agree with a number This was intended to continue the examination has not created a genuine of commenters that a requirement to existing exemption for enforcement dispute of fact and the intervenor has include the postulated answers to the proceedings from requirements not called any witnesses, the Board is questions may create an unnecessary regarding prefiled testimony and empowered to grant summary burden on the preparer of the plan. The provide a similar exemption concerning disposition on the applicant's testimony 2-SC-60

PART 2 STATEMENTS OF CONSIDERATION or the evidentiary record, without a continues to believe that the advantages NRC staff. Applicants have the burden requirement for supporting affidavits. for streamlining the hearing process by of proof to demonstrate that the action Commenters opposing the proposed explicitly permitting summary should be taken and thus should be free change generally felt that it would not disposition motions to be filed at any to supmit findings on all issues which increase the effectiveness of the hearing time during the proceeding outweigh the could affect the Commission's decision process, but rather could result in chaos potential disadvantages for the process. to grant a license or to take an appeal and enormous inefficiencies during the The Commission's regulations in 10 CFR from an adverse decision. The NRC staff hearing process. Several commenters 2.749(c) provide safeguards against has an overall interest in the proceeding were particularly concerned that this potential abuses of the summary to assure that the public health and change would create the opportunity for disposition procedures. A party who is safety and environmental values are harassing motions. Well-funded parties unable to respond to such a motion protected. could overwhelm other parties with because discovery is incomplete may Commenters supporting the change paperwork at crucial times. Several state his or her reasons in a response to agreed that it would improve the hearing commenters felt the change would be the motion and the presiding officer may process and would contribute to the unfair to intervenors, who generally refuse to grant summary disposition or overall effort to streamline and make have fewer resources and rely on take other appropriate action. The the hearing process more efficient. volunteers. Several indicated that time Commission believes that this provision Several indicated they felt this change was needed before trial to prepare provides sufficient protection in those had considerable merit and would testimony and review that of others. If instances where a party opposing a ensure that filings are submitted by summary judgment motions could be motion for summary disposition is parties who have a real concern and filed anytime, they could divert unable to respond. However, the interest in resolution of issues. One resources away from trial preparation. Commission recognizes the validity of supporter of the proposal suggested that In addition, several expressed concern the concern expressed by several the current policy which permits appeals that motions could be filed before commenters that summary disposition by a party on any issue whether they discovery was completed and before motions filed close to the start of or . have litigated it or not is inconsistent opponents of the motion could have during a hearing have the potential for with the basic tenet of hearings to obtained information to respond to the prolonging the hearing. Therefore, a resolve disputes between specific motion. This could result in legitimate sentence has been added to 10 CFR parties. Redundant filings are safety issues being lost and never 2.749(a) to give the presiding officer the unnecessary and generally not helpful. litigated. One commenter noted that this discretion to dismiss or hold in One commenter suggested that the proposed change constitutes a departure abeyance summary disposition motions Commission go further and preclude an from Federal practice. The purpose of which could divert substantial resources intervenor from pursuing issues in which summary judgment is to eliminate issues from the hearing and thereby prolong it has no cognizable interest. If this were from the evidentiary hearing; therefore, the hearing process. done, there would be no need to place summary disposition motions are 5. Proposed Findings and Conclusions limits on cross-examination or filings. appropriately filed before a hearing (10 CFR 2.754) and Appeals to the Another suggested that the rule should begins. Once the hearing has started, Commission From Initial Decisions (10 also provide that an intervenor who fails use of summary judgment motions is CFR 2.762) Limitations to file proposed findings on an issue more likely to slow down rather than The proposed amendment to 10 CFR may not thereafter appeal the portion of speed up the process. 2.754(c) would limit an intervenor's the initial decision which deals with that Another commenter noted that the filings of proposed findings of fact and issue. rule change is unnecessary because the conclusions of law to issues which that Comments by opponents of the current rule would permit summary party actually placed in controversy or proposed change focused on three main judgment motions at all times if the sought to place in controversy in the points. The first area concerned the presiding officer permits. If the rule is proceeqing. The proposed amendment to discriminatory impact on intervenors changed, however, the commenter 10 CFR 2.762(d) would similarly limit the and an asserted misperception on the argued that the last sentence of the issues which an intervenor could raise part of the NRC of the role of current 10 CFR 2.749(a) should be in an appellate brief. Under current intervenors in NRC proceedings. Several retained. It provides that the Board may practice, a party may file proposed asserted that the proposal was a denial summarily dismiss summary disposition findings and conclusions of law on any of due process and one commenter motions if they are filed shortly before issue in the proceeding and may also stated that the Administrative Procedure or during the hearing and would result appeal on all issues in the proceeding. Act entitles all parties to a hearing to in a substantial diversion of resources. The only limitation is that a party must file proposed findings of fact and The commenter expressed concern that have a discernible interest in the conclusions of law. 5 U.S.C. 557(c). without this sentence the presiding outcome of the particular issue being Several argued that there was no logical officer's authority to control the hearing considered. The purpose of the proposed e*xplanation given for discriminating process would be diminished. The Board change is to ensure that presiding against intervenors. They called should be able to dismiss or at least officers and agency appellate tribunals attention to the fact that in its proposed hold in abeyance motions filed during will be able to focus on disputed issues rule the Commission acknowledged that the hearing that have the potential to in a proceeding as presented and argued intervenors have broad, generalized disrupt the hearing. by parties with a primary interest in the interests in protecting the health and Summary disposition is a significant issue. The change would also avoid safety. This interest is akin to the same procedural tool to eliminate unnecessary having these officials inundated with kind of interest which the Commission hearing time spent on testimony and filings from persons with little or no found to be justification for preserving cross-examination where no material stake in the resolution of a particular the right of the NRC staff to file issues of fact remain in dispute. The issue. proposed findings and conclusions of Commission has evaluated the The proposed amendments did not law. One commenter asserted that the comments on summary disposition and apply to the license applicant or the process of gaining admission as a party 2-SC-61

PART 2 STATEMENTS OF CONSIDERATION should be sufficient to dismiss any should have the opportunity to submit The Commission has also examined allegations of a lack of a discernible filings. Otherwise, NRC could be the assertion that the proposed rule interest in the outcome of issues raised deprived of valuable input from the could violate a provision of the in the proceeding. party with the most interest in a Administrative Procedure Act, 5 U.S.C. Several commenters described the particular issue. The State of Nevada 557(c). That section provides that: proposal as "mysterious" and indicated its view that under the "Before a recommended, initial, or confounding. In their view, the goal of Nuclear Waste Policy Act, a host state tentative decision, or a decision on agency the agency should be to compile as full a or Indian tribe is to be accorded the review of the decision of subordinate employees. the parties are entitled to a record as possible for the same status as the staff or an applicant. reasonable opportunity to submit for the decisionmakers: the NRC should not The proposed change would thus violate consideration of the employees participating seek to limit the information it receives provisions of the NWPA. in the decisions--(1) proposed findings or in any licensing proceeding. Findings Another group of commenters, while conclusions; or (2) exceptions to the decision and conclusions do not harm the generally favoring the proposal, or recommended decisions of subordinate decisionmaker and could be helpful. disagreed with the language which employees or to tentative agency decisions; Another commenter noted that the NRC and (3) supporting reasons for the exception would permit filings and appeals on or proposed findings or conclusions." currently has less than a dozen issues which intervenors "sought to proceedings underway, suggesting that place in controversy". If an issue has not There has been little analysis of this the Hearing Boards are not overworked aspect of the APA in the case law; see, been admitted into the proceeding then e.g., Klinestiver v. DEA, 606 F2d. 1182 or overwhelmed by cases. Commenting no record will have been developed and specifically on the limitation of appeals (D.C. Cir. 1979). While we recognize no basis for proposed findings will exist. there may be some uncertainty about to issues litigated by a party, one person It is appropriate to allow an appeal and noted that an erroneous initial decision the appropriate reading of section 557(c), briefs on the basis that a contention was we believe that the rule is in accord with should be identified and corrected no erroneously rejected. But this proposal* matter who initi 9lly raised the issue of the Administrative Procedure Act would appear to allow appeals on a because it preserves the opportunity for concern. much broader basis and permit filings parties to file findings of fact, A second focus of concerns was on on the merits of the contentions. the impact of such a change on NRC conclusions of law, and exceptions to proceedings. A number of commenters The Commission has reviewed the initial decision*s with respect to those suggested that the proposal would cause comments on the proposed changes to issues which the party has specifically intervenors to adopt each other's 10 CFR 2.754 and 2.762. After raised as concerns in the proceeding. contentions and assert all issues in consideration of the various arguments Practice under the Commission's* order to preserve their rights. This could put forth by the commenters, the existing regulations has been moving in prolong the hearing and overwhelm Commission is persuaded that the the direction of a more carefully hearings with the volume of proposed changes should be adopted. circumscribed appeals process. In participation on an issue. The proposal Limitations on proposed findings and Plriladelphla Electric Co. (Limerick would also make it difficult for appeals to issues that the intervenor Generating Station, Units 1 and 2), intervenors to work together, divide actually placed in controversy or sought ALAB-845, 24 NRC 220 (1986), the . tasks and share the expense of litigating to place in controversy will ensure that Appeal Board concluded that an issues. Such coordination now makes it the parties and the adjudicatory intervenor which had limited its possible for intervenors to financially tribunals focus their interests and participation to certain technical issues bear the cost of litigation and reduces adjudicatory resources on the contested and had not participated in any aspect redundancy in the proceeding. issues as presented and argued by the of litigation of emergency planning Currently, intervenors may share issues party with the primary interest in, and contentions did not have a right to and an intervenor may not participate concerns over, the issues. These sorts of appeal the Licensing Board's decision in fully knowing another intervenor is limitations should also serve to reduce connection with the applicant's raising the issue. Under this proposal if the paper burdens for the adjudicatory emergency plan. "Whether an intervenor a party subsequently fails to pursue an boards. We disagree with the suggestion has the right to pursue a particular issu11 issue, other intervenors would not have that the proposed limitations will cause on appeal is a function of the level of the opportunity to adopt the issue. intervenors to raise a multitude of issues interest expressed by the intervenor in Without this opportunity, further or adopt each other's contentions in such issue throughout the course of the consideration of issues would be order to preserve their rights, and thus, proceeding." Id. at 253. blocked regardless of how serious or will prolong and overwhelm the hearing We also note that the phrase "sought meritorious they were. Also, because of process with the attendant high level of to place in controversy" was intended to the complex and technical nature of participation on all issues. The new recognize that an appeal and briefs are NRC's proceedings, an intervenor may standards for admission of contentions permissible on the basis that a discover it is interested in an issue it did that we are adopting as part of this contention was erroneously rejected. not identify initially. The proposal also rulemaking should serve to limit the The language was not intended to allow ignores the fact that each intervenor degree to which any party can gain appeals on a broader basis or on the brings a different perspective to the admission of contentions that are merits of the contentions not admitted. proceeding and can make a unique frivolous or in which the party has little In view of all of the above, the contribution through their filings. Boards real interest. Moreover, existing proposed amendment has been adopted. should be able to judge these filings and § § 2.715a and 2.718 which authorize the presiding officer to consolidate parties, Miscellaneous Issues give them such consideration as their quality merits. issues and adjudicatory presentations, Several commenters included their Finally, several commenter& focused can and should be used to limit views on other possible rule changes on the application of this proposal to an unnecessary multi-party presentations discussed by the Commission in its 1984 affected state. States bring a unique and participation in the litigation of Request for Public Comment on perspective to NRC proceedings and common contentions. Regulatory Reform Proposals (49 FR 2-SC-62

PART 2 STATEMENTS OF CONSIDERATION 14698, April 12, 1984) which preceded The revised rules do not apply to civil explain why it did not use alternative this proposed rule. Those proposals are penalty proceedings conducted under 10 data, assumptions, or analyses in its not a part of this rulemaking. The CFR 2.205. Section 189a. of the Atomic reviews. Codification of this Commission evaluated comments on the Energy Act does not provide for third requirement is preferable to relying on 1984 proposals as part of the decision- parties to participate as "interested existing case law because it conserves making process which led to the choice persons" in such proceedings. resources that would otherwise have to of the five proposed changes which These amendments will take effect be expended in opposing such discovery constitute this rulemaking. No further thirty days after publication in the requests. The final rule's provisions in discussion of those initial proposals is Federal Register. The amendments will 10 CFR 2.743 on cross-examination plans necessary. apply only to contentions in proceedings ' require a party to obtain the permission Some commenters objected to the initiated after that date. The of the presiding officer in order to application of these changes to High Commission's rules and administrative conduct cross-examination and bar the Level Waste [HLWJ Licensing decisions interpreting those rules in presiding officer from considering any proceedings. The Commission has existence prior to that date will be such request unless it is accompanied by established the procedures for the HLW applied to contentions filed in a plan containing specific information licensing proceeding in a final LSS rule proceedings initiated prior to that date. about the nature and purpose of the which added a new subpart J to 10 CFR Withdrawal of Earlier Rulemaking proposed line of questioning. While the part 2 (50 FR 14925, April 14, 1989). use of cross-examination plans could However, the Commission is now in the Commission published for public have been left as a matter of discretion process of evaluating whether any comment on June 8, 1981 (46 FR 30349) a for the presiding officer, the benefits proposed rule to make changes to from the use of such plans, i.e., more additional modifications are needed to elements of its Rules of Practice, focused and controlled hearings, favor these provisions. As part of its including several of the sections evaluation, the Commission is making use of such plans standard amended by this proceeding. Because practice in NRC proceedings. The considering whether any of the the Commission has chosen to proceed revision of 10 CFR 2.749 permits the provisions in the final amendments on with adoption of the changes to its Rules filing of motions for summary regulatory reform that would not of Practice included in this rulemaking, disposition at any time during a already be included in subpart Jby the earlier proposal is withdrawn. proceeding. The current practice leaves cross-reference, should be added to subpart J. Section 2.1000 of subpart J Environmental Impact: Categorical the timing for filing of such motions cross-references any sections of general Exclusion wholly within the discretion of the applicability in subpart G of part 2 that presiding officer. The final rule is The NRC has determined that this preferable to continuing the present will continue to apply to the HLW final rule is the type of action described licensing proceeding. As such, all but practice because making it explicit that in categorical exclusion 10 CFR summary disposition motions may be one of the provisions in the final 51.22[c)[1). Therefore, neither an regulatory reform rule [ § 2.714, which filed at any time during the proceeding environmental impact statement nor an encourages the use of such procedures requires contentions to show that a environmental assessment has been genuine dispute exists on an issue of whenever an issue can be disposed of prepared for this proposed regulation. without a hearing. law or fact) will apply to the HLW proceeding. However, subpart J contains Paperwork Reduction Act Statement Since November 1981 a number of a new provision on contentions, This final rule contains no information alternative changes to improve the § 2.1014, and consequently § 2.714 collection requirements and therefore is hearing process have been evaluated by would no longer apply to the HLW not subject to the requirements of the the Regulatory Reform Task Force, the proceeding. The Commission intends to Paperwork Reduction Act of 1980 (44 Senior Advisory Group (NRC evaluate the need to extend the U.S.C. 3501, et seq.). personnel), the Ad Hoc Committee for "genuine issue of fact" standard to the the Review of Nuclear Reactor Licensing HLW proceeding. A determination of Regulatory Analysis

• Reform Proposals (non-NRC persons such a need would result in the The revisions to the Commission's with experience in the licensing process]

Commission proposing a rule amending Rules of Practice in 10 CFR part 2 and through the Request for Public 10 CFR 2.1014. As the Commission noted improve the effectiveness and efficiency Comment on Regulatory Reform in the Supplementary Information to the of NRC proceedings with due Proposal published in the Federal final LSS rule - consideration for the rights of all Register on April 12, 1984 (49 FR 14698).

  * *

• the Commission is committed to do participants. The changes to 10 CFR This final rule improves the efficiency everything it can to streamline its licensing 2.714 require the proponent of a and effectiveness of NRC's hearing process and at the same time conduct a contention to submit sufficient factual process while maintaining due regard thorough safety review of the Department of information to demonstrate the for the rights of affected parties and thus Energy's application to construct a high-level existence of a genuine dispute with the is the preferred alternative. This rule waste repository. The negotiators to this applicant or the licensee or the NRC does not have a significant impact on rulemaking have made a number of staff regarding a material issue of law or State and local governments and improvements to our existing procedures. fact. This amendment ensures that the geographical regions, public health and However, more improvements may be safety, or the environment: nor does it necessary if the Commission is to meet the resources of all participants in NRC tight licensing deadline established by the proceedings are focused on real issues represent substantial costs to licensees, Nuclear Waste Policy Act of 1982, as and disputes among the parties and thus the NRC, or other Federal agencies. This amended. By publishing this rule, the it is preferable to existing requirements. constitutes the regulatory analysis for Commission is not ruling out further changes The revisions to 10 CFR 2.720 clarify this rule.

to its rules of practice, including further existing practice that the staff may not Regulatory Flexibility Certification changes to the rules contained in the be required: (1) To perform additional negotiated rulemaking. (50 FR 14925, 14930, research or analytical work beyond that This final rule does not have a April 14, 1989). required to support its position, or (2) to significant economic impact upon a 2-SC-63

PART 2 STATEMENTS OF CONSIDERATION substantial number of small entities. The 54 FR 39728 AGENCY: Nuclear Regulatory amendments modify the Commission's Published 9/28/89 Commission. rules of practice and procedure. Most ACTION: Final rule; correction. 10 CFR Part'2 entities seeking or holding construction

SUMMARY

This document corrects a permits or Commission licenses that RIN 3150-AC22, 3150-AA-05 final rule published April 18, 1989 (54 FR would be subject to the revised 15372), which provides for issuance of provisions would not fall within the Rules of Practice .for Domestic early site permits, standard design definition of small businesses found in Licensing Proceedings-Procedural certifications, and combined section 34 of the Small Business Act, 15 Changes in the Hearing Process construction permits and operating U.S.C. 632, in the Small Business Size AGENCY: Nuclear Regulatory licenses with conditions for nuclear Standards set out in regulations issued Commission. power reactors. This document also by the Small Business Administration at corrects a final rule published on ACTION: Final rule; correction.

13 CFR part 121, or in the NRC's size October 16, 1989 (54 FR 42287), which standards published December 9, 1985

SUMMARY

This document corrects a changes the commercial telephone (50 FR 50241). Although intervenors final rµle published on August 11,, 1989 number for the Region m Office. This subject to the provisions likely would (54 FR 3316B),. that amends the action is necessary to correct fall within the pertinent Small Business Commission's Rules of Practice to incomplete or erroneous amendatory Act definition, the impact on intervenors improve _the hearing process with due Instructions.

or potential intervenors will be neutral. regard for the rights of the parties. The FOR FURTHER INFORMATION CONTACT: While intervenors or potential action is necessary to correct an error in Michael T. Lesar, Chief, Rules Review intervenors will have to meet a higher an amendatory instruction. Section, Regulatory Publications Branch, threshold to gain admission to NRC FOR FURTHER INFORMATION CONTACT: Division of Freedom of Information and proceedings and, thereby incur some Michael T. Leser, Acting Chief, Rules Publications Services, Office of . additional economic costs in preparing Review Section, Regulatory Publications Administration, U.S. Nuclear Regulatory requests for hearing or requests to Branch, Division of Freedom of Commission, W aahington, DC 20555, intervene, these costs should be offset Information and Publications Services, Telephone: 301-492-7758, by a reduction in intervenors' costs once Office of Administration, U.S. Nuclear SUPPLEMENTARY INFORMATION: the hearing commences because Regulatory Commission, Washington,. 1. In the lFederal Register of April 18, information developed to support DC 20555iTel~phone: 301492:..7755, ** *

• 1989, in the second column of page admission to the proceeding will be used SUPPLEMENTARY INFORMATION: In the .. 15398, amendatory instruction number 11 Is corrected to read as follows:

during the conduct of the proceeding. Federal Register of August 11, 1989, in Thus, in accordance with the Regulatory the center column of page 33180, make § 2.501 [Amended] Flexibility Act, 5 U.S.C. 605(b), the NR.C the follo~i~ correction: 11. In the heading and paragraphs (a), hereby certifies that this rule does not § 2.714 [Corrected] [b)(l)(vii), and (b)(3), the references to have a significant economic impact upon Appendix M of part 50 are amended to a substantial number of small entities. 1. The first sentence of amendatciry instruction number'2*should read as refer to Appendix M of part 52.

• Backfit Analysis follows:* *
• 2. In the Federal Register of October "2. In§ 2.714, paragraphs (e) through 16, 1989, in the second column of page This final rule does not modify or add 42288, amendatory instruction number 4 (i) are designated as paragraphs (f) to systems, structures, components, or is corrected to read es follows:

through (j)." design of a facility; the design approval or manufacturing license for a facility; or

                                                     .           .                          § 21.2 [Amended]

Dated al Bethesda, Maryland, this 22nd 4. In footnote 1 to I 21.2, the the procedures or organization required day o.f September 1909. to design, construct, or operate a facility. commercial telephone number for the For the Nuclear 1\egulatory Commission. NRC Region Ill Office (Chicago) le Accordingly, no backfit analysis Donnie H:Gri~eley,

• pursuant to 10 CFR 50.109(c) is required changed from "(312) 790-5500" to "(708) for this final rule. Director. Division ofFreedoJ11 oflnformation 790-5500".

and Publications Services. Office of Administration. Dated at Bethesda, Maryland, this 15th day List of Subjects in 10 CFR Part 2 of December 1989. Administrative practice and 54 FR50735 For the Nuclear Regulatory Commission. procedure, Antitrust, Byproduct Published 12/11/89. Donnie H. Grim&lcy, material, Classified information, Director, Division a/Freedom of Information Early Site Permits; Standard Design and Publications Services, Office of Environmental protection, Nuclear Certifications; and Combined Licenses materials, Nuclear power plants and Administration. for Nuclear Power Reactors; Correction reactors, Penalty, Sex discrimination, Source material, Special nuclear See Part 52 Statements of Consideration material, Waste treatment and disposal. For the reasons set out in the 54 FR52342 preamble and under the authority of the Published 12/21 /89. Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, 10 CFR Parts 2 and 21 as amended, and 5 U.S.C. 553, the RINs 3150-AC81 and 3150-AD37 Nuclear Regulatory Commission is adopting the following amendments to Amendatory Instructions: Correction 10 CFR part 2. 2-SC-64

PART 2 STATEMENTS OF CONSIDERATION 54 FR 53035 4:15 p.m., weekdays. Copies of Commlssion recognizes that Published 12/26/89 comments received* may be examined at consideration of only one root cause the NRC Public Document Room, 2120 L (maintenance) as a specific escalating 10 CFR Part 2 Street NW., Lower Level; Washington, factor focuses on only a fraction of the DC. possible casual factors that may be Informal Hearing Procedures for FOR FURTHER INFORMATION CONTACT: involved in a particular violation. Materials Licensing Adjudications James Lieberman, Office of By this change, the Commission 'is not Correction Enforcement, U.S. Nuclear Regulatory establishing a new group of civil penalty Commission, Washington, DC 20555, actions. Consistent with current In rule document 89-4601 beginning on Telephone (301) 49~741. practice, a violation will be considered page 8269 in the issue of Tuesday, SUPPLEMENTARY INFORMATION: On for escalated action (Severity Level I, II, Feb1uary 28, 1989, make the following March 23, 1988, the Commission issued a or Ill violations) based on the violation, corrections: Policy Statement on Maintenance of including its impact, circumstances, and Nuclear Power Plants (53 FR 9430) root causes. Special escalation will only § 2.1213 [Corrected] apply if the violation or problem area which stated the Commission's

1. On page 8278, in the third column, expectations in the area of maintenance (aggregated violations) has a in I 2.1213, in the ninth line, "offer" and its intention to proceed with a maintenance root cause.

should read "order". rulemaking on maintenance. The Commission concludes that Subsequently, on November 28, 1988, the modifying the Enforcement Policy to § 2.1235 [Corrected] . Commission published a Notice of. permit-increased civil *penalties for

2. On page 8279, in the third column, Propos!!d Rulemaking (53 FR 47822) Severity Level I, II, or III violations in § 2.1235(a), in the last line, insert "to" directed toward improving the which occur 90 days or later after the before "a witness".

• effectiveness of.maintenance programs.
• date of this notice and which result from

3. On the same page, in the same The Commission recognizes that the maintenance deficiencies may provide a column, in § 2.1235{b), in the second industry and individual licensees have.* further incentive to ensure that all made improvements in their licensees place appropriate attention on line, "relief' should read "relied". maintenance of equipment whose failure maintenance programs. Indeed, the

§ 2. 1251 ( Corrected l Commission has seen noticeable could significantly impact safety. Use of progress by the lndustr.y over the post the Commission's enforcement program

4. On page 8280, in the first column, in four years in the area of nuclear power in this manner to emphasize the

§ 2.1251(b), in the fifth line, "fiding"        plant maintenance. The Commission            Importance of meeting existing should read "finding".                           also recognizes that the industry is         requirements related to.maintenance is committed to continue to improve             warranted because of the varying 54 FR 53312 maintenance. Nevertheless, NRC               quality of licensee maintenance Published 12/28/89.

Effective 12/28/89 maintenance team inspections have programs, including Implementation, confirmed that further improvements are and the decision to hold in abeyance the Statement of Organization and General necessary, especially with regard to rulemaking on maintenance. By this Information; Minor Amendments effective implementation of revision to the Enforcement Policy, the maintenance programs. In view of the Commission is putting licensees on See Part 1 Statements of Consideration progress made to date, B!! w~ll a1,1 th~ notice that the decision to defer a industry's expressed commitment to maintenance rule does not mean the 154 FR50610 *continue to improve maintenance, the

• Commission does not expect a serious Published 12/8/89 licensee effort in the maintenance area.

Effective 12/8/89 Commission has decided to hold rulemaking in abeyance for a period of It is expected that the revision to the 10 CFR Part 2 18 months from the effective date of the Enforcement Policy will remain effective Revised Policy Statement on at least until the CommiSBion Polley and Procedures for Maintenance of Nuclear Power Plants reconsiders the need for rulemaking in Enforcement Actions; Polley which was published elsewhere in this the maintenance area. Statement issue. The Commission will assese the Since this action concerns a general AGENCY: Nuclear Regulatory need for rulemeking at the conclusion of statement of policy, no prior notice is. Commission. this 18 month period. baaed upon required and. hence, this modification to ACTION: Policy statement: modification.. industry initiatives and progress in the Enforcement Policy is effective upon improving maintenance. issuance. However, the modification for

SUMMARY

The NRC is publishing a The Commission believes that a maintenance will only be applied for modification to Its Enforcement Policy to strong maintenance program can make a violations which occur 90 days or later add an additional civil penalty significant contribution to safety. In the after the.date of publication.

adjustment factor for violations Revised Policy Statement on the Maintenance of.Nuclear Power Plants, List of Subjects In 10 CFR Part 2 involving maintenance deficiencies. This policy is codified as Appendix C to 10 the Commission stated its intention to Administrative practice and CFRpart 2. emphasize maintenance in enforcing procedure, Antitrust, Byproduct EFFECTIVE DATE: December a. 1989. existing requirements-for power material, Classified information, Civil However, It will only be applied for. _reactors. Consistent with that position, penalty, Enforcement, Environmental° violations which occur after March 8, the Enforcement Policy is being revised protection, Nuclear materials, Nuclear 1990. Comments submitted on or before . to provide such emphasia by adding power plants and reactQ.rs, Penalty, Sex February 8, 1990, will be*considered. maintenance failures ali an escalating discrimination, Source material, Special fac!!l_r in.as~ess!ng civil penalties where nuclear materiel, Violations, and Waste ADDRESSES: Send comments to: treatment and disposal .. it has Iieen concluded that the"violation Secretary, U.S. Nuclear Regulatory involves a significant regulatory Commission, Washington, DC 20555, concern. The Commission acknowledges ATTN: Docketing and Service Branch. that inclusion-of the root cause of a Deliver comments to One White Flint violation as an escalation factor when North, 11555 Rockville Pike, Rockville, considering a civil penalty Is a change Maryland* 20852, between 7:ao*a.m. and from past.practice. Further, the 2-SC-65

PART 2 STATEMENTS OF CONSIDERATION 55FR843 Regulatory Commission, Washington, to operator hearing requests that an Published 1/10/90. DC 20555, telephone (301) 492-1600. applicant for an operator license whose Effective 1/10/91 SUPPLEMENTARY INFORMATION: application is denied is entitled only to Safety Requirements for Industrial an informal hearing in accordance with L Background procedures like those now embodied in Radiographic Equipment On April 26, 1989 (54 FR 17961), the subpart L. E.g., David W. Held [Senior See Part 34 Statements of Consideration NRC published in the Federal Register Operator License for Beaver Valley proposed amendments to its Rules of Nuclear Po~er Station, Unit 1), ~oc~et Practice at 10 CFR part 2. The No. 55-60402 [Comm. Aug. 7, 1987). In amendments make the informal the wake of NRC's adoption of subpart L adjudicatory procedures set forth in 10 [February 28, 1989; 54 FR 8269), the CFR part 2, subpart L, applicable in

• Commission decided that the proceedings for the granting, renewal or Commission's regulations should reflect licensee-initiated amendment of a the practice followed in the individual reactor operator or senior reactor orders.

operator license. However, the

                                             ~mendments provide for the use of the        II. Public Comments and Commission formal adjudicatory procedures set forth     Responses in 10 CFR part 2, subpart G, in any             The Commission received seven reactor operator licensing proceeding       'comments representing a broad that is initiated by a notice of hearing     spectrum of interested persons.

under § 2.104, a notice of proposed Commenters included three utilities, a action under § 2,105, or a request for law firm representing five utilities, the hearing under subpart B of 10 CFR part 2 Nuclear Management and Resources on an order to show cause, an order for Council [NUMARCJ, a licensed senior modification of license or a civil penalty. reactor operator and a law firm On July 10, 1989 (54 FR 28822), the NRC representing the Professional Reactor extended the date for submission of Operator Society [PROS). All comments comments on the proposed amendments are available for inspection and copying to August 10, 1989. in the agency's Public Document Room, Section 189a of the Atomic Energy Act 2120 L Street NW. (Lower Level), of1954 [AEA) (42 U.S.C. 2239[a)) Washington, DC. provides that in any proceeding for the One utility and a law firm granting, suspending, revoking, or representing five utilities expressed amending of any license, the NRC shall general support for specification of the grant a hearing upon the request of any informal adjudicatory procedures that 55 FR36801 person whose interest may be affected will apply in reactor operator license Published 9n/90. by the proceeding. Among the licenses proceedings, but deemed it necessary or Effective 10/9/90 issued by the NRC are those for desirable that the amendments

     . -.                                   operators and senior operators of             explicitly grant applicants and licensees 10CFR Part2                                  nuclear reactors (AEA section 107, 42         access to formal adjudication upon a RIN 3150-AD17                                U.S.C. 2137; 10 CFR part 55).                 showing of good cause or special The Commission's rules of practice        circumstances. NUMARC affirmed the Informal Hearing Procedures for              generally provide for two types of            rationale for the proposed amendments, Nuclear Reactor Operator Licensing           hearing procedures for licensing              but nonethless deemed desirable the Adjudications                                proceedings-formal and informal.              application of subpart G to hearings Under 10 CFR part 2, subpart G, those         concerning the denial of an initial or AGENCY: Nuclear Regulatory                                                                 renewal application. These commenters requesting a hearing with respect to a Commission.                                  reactor licensing action or any agency        also suggested certain changes in ACTION: Final rule.                          enforcement activity affecting a license     provisions of the existing, informal are generally provided a formal, trial-      adjudicatory rules under subpart L

SUMMARY

The Nuclear Regulatory type hearing conducted in accordance insofar as they would apply to reactor Commission (NRCJ is amending its with the provisions of the operator licensing proceedings. One regulations to provide rules of procedure Administrative Procedure Act, 5 U.S.C. utility found the NRC's Statement of for the conduct of informal adjudicatory 554-557 and 10 CFR part 2, subpart G. Consideration inadequate and urged hearings in nuclear reactor operator On the other hand, a request for a renotice either justifying the licensing proceedings. The Atomic hearing regarding an NRC materials amendments more clearly or proposing Energy Act of 1954 requires that the licensing action generally entitles an adoption of formal procedures for all NRC, in any proceeding for the granting, - interested person to an informal, operator license proceedings. Two other suspending, revoking or amending of legislative-type hearing in accordance commenters, a senior reactor operator any license afford an interested person, with 10 CFR part 2, subpart L. and the law firm representing PROS, upon request, a "hearing." This final rule NRC regulations currently do not opposed the amendments as contrary to would include reactor operator licensing specify the type of hearing to be the due process rights of licensed proceedings under the informal hearing afforded in the event that an interested reactor operators. One utility wholly procedures already established for person, including an applicant for a endorsed the proposed amendments.

materials licensing proceedings. reactor operator license or a licensee, After considering all comments, the EFFECTIVE DATE: October 9, 1990. requests a hearing with regard to agency Commission, with one exception, is FOR FURTHER INFORMATION CONTACT: action concerning a reactor operator issuing the amendments as proposed. In Roger Davis, Senior Attorney, Office of license. Previously, the Commission has response to the comments, the the General Counsel, U.S. Nuclear declared in individual orders responding Commission has explicitly extended to 2-SC-6.6

PART 2 STATEMENTS OF CONSIDERATION the initial or renewal applicant who is formal adjuc;iication in proceedings that procedures for resolution of the typical issued a notice of proposed denial or a would involve revocation, suspension, inquiries in the proceedings to be held notice of denial permission to include in or modification of a license; and 2. under subpart L; and 4. the opportunity his or her request for hearing a request subpart L already authorizes a presiding to obtain other procedures when they that the presiding officer recommend officer's recommendation that the are necessary for a fair resolution of authorization of other procedures for the Commission approve other procedures critical factual issues. proceeding. This request must include a in a particular proceeding otherwise The Commission recognizes that statement of the special factual conducted under subpart L procedures. substantial personal interests may be circumstances or issues supporting other The law firm representing PROS affected by the decision to grant or deny hearing procedures. argued that the informal procedures are an application for a reactor operator At the outset, it is useful to note some insufficient for actions that could license. However, the nature of the of the highlights of the Commission's deprive an operator of his or her affected interest is limited by virtue of informal adjudicatory procedures. property interest in the continued the fact that reactor operator license Within thirty days after a presiding validity of the license or his or her applicants are subject to broad officer's entry of an order granting a liberty interest in pursuit of a career as Commission powers to grant or deny, request for a hearing, NRC files in the reactor operator. PROS would support and operator licenses permit docket a hearing file consisting of th!;! the amendments only if they were performance of the licensed functions application and any relevant NRC report modified to make informal procedures only in a specific facility (10 CFR and correspondence between the available as an option to an operator in 55.53(bH c)), where the licensee of the applicant and the NRC (10 CFR 2.1231). lieu of formal proceedings. Another facility has certified to the need for the Thereafter, the parties are afforded an commenter, NUMARC, believed that the position and requested examination of opportunity to submit written codification and use of informal hearing the applicant for a license (10 CFR presentations of their arguments and procedures for the granting, renewal or 55.31(a)[3)-(4)). The interest at issue is supporting writt,m evidence (10 CFR licensee-initiated amendment of a also somewhat limited by the fact that 2.1233(a)). These presentations are to be reactor operator license would provide reactor operator licenses expire six made under oath or affirmation. Id. In fair, efficient, and effective adjudication. years after issuance with no guaranteed addition, the presiding officer is Nonetheless, NUMARC suggested that it right to renewal (10 CFR 55.55). empowered to submit written questions would be desirable for the NRC to apply Moreover, the applicant for initial to the parties to be answered in writing, subpart G to proceedings concerning the issuance of an operator or senior id., and to issue subpoenas for denial of an initial or renewal operator license does not face a attendance and testimony at hearings application because of the significance deprivation of a vested or existing and for production of documents or of this denial for the operator. The position or status. An individual seeking things (10 CFR 2.1209(h)). Upon Commission believes that these renewal of an existing license may feel determining that it is necessary to create commenters similarly fail to give that he or she has been deprived of a an adequate record for decision, the sufficient consideration or weight to the vested or existing position or status, but presiding officer may also allow or specification of circumstances in which there is no guaranteed right of renewal. require oral presentations, including formal procedures will apply and to the Therefore, it is not certain that protected testimony by witnesses, under oath and authorization of the presiding officer to interests are always or generally at stenographically recorded (10 CFR recommend other than informal stake in proceedings concerning the 2.1235 (a)-(b)). The presiding officer procedures in appropriate cases. issuance or renewal of a part 55 license. conducts examination of the witnesses Moreover, these commenters do not However, the Commission will and may allow the parties to propose scrutinize closely the type of affected nonetheless assume for purposes of questions for posing to the witnesses. Id. individual interests or the general types further discussion that they ere. Finally, the presiding officer may of inquiries in the adverse actions at The key question remains as to recommend to the Commission that issue. whether the Commission is providing procedures other than the specified A party's entitlement to a hearing is less procedure than due process requires informal procedures be used in the determined by the balancing of three under the circumstances. The . proceeding (10 CFR 2.1209(k)).

• factors: 1. The private interest affected Commission is providing a hearing. And, A. General Comments by official action; 2. the probable value it is clear that due process does not of additional or different procedures; require full trial-type procedures in

1. Formal Hearings Are Required for and 3. the Government's interest, every case. "The fundamental Licensees If Requested including the function involved and the requirement of due process is the Two commenters opposed the fiscal and administrative burdens of opportunity to be heard 'et a meaningful proposed amendments on the ground additional or different procedural time and in a meaningfull manner.' "

that licensed operators are entitled to requirements. Mathews. v. Eldridge, 424 Mathews v. Eldridge, 424 U.S. at 333 trial-type hearings under the U.S. 319, 335 (1976). After reviewing and (quoting Armstrong v. Manzo, 380 U.S. Constitutiton. The licensed senior weighing these factors, the Commission 545, 552 (1965)). The Supreme Court has reactor operator viewed the proposed remains convinced that the informal repeatedly emphasized that" '(d]ue amendments as both permitting the adjudicatory procedures set forth in process,' unlike some legal rules, is not a revocation of a license for any reason or subpart Lare appropriate for the reactor technical conception with a fixed whim and eliminating the right to a operator licensing proceedings to be content unrelated to time, place and formal hearing. The commenter covered by this rule. This conclusion circumstances." Id. at 334 (quoting apparently overlooked the specific follows from a number of observations Cafeteria Workers v. McElroy, 367 U.S. standards in 10 CFR part 55 under which and findings, but in particular the 886, 895 (1961)). Thus, "'[d]ue process is licenses are issued, renewed, modified, following: 1. The nature of the interests flexible and calls for such procedural suspended, or revoked. The commenter at stake; 2. the Commission's provision . protections as the particular situation also does not seem to appreciate that: 1. of a meaningful hearing at a meaningful demands.' " Id. (quoting Morrissey v. The proposed amendments provide for time; 3. the appropriateness of informal Brewer, 408 U.S. 471, 482 (1972)). 2-SC-67

PART 2 STATEMENTS OF CONSIDERATION The nature of the rele~ant inquiry is both, may reapply two months after the from needs for court reporters, central to the evaluation of the fairness date of denial, and make successive transcripts, rent for hearing facilities, 3 and reliability of the existing procedures applications at other intervals thereafter and travel expenses for necessary and the probable value, if any, of (10 CFR 55.35). These opportunities for agency personnel. Moreover, the additional safeguards (/d. at 343). reapplication in and of themselves may commenter conceded that it is difficult Arguing that the Commission should satisfy the purposes of a hearing if one to generalize from the figures, bolster initial and renewal applicants' is otherwise required. See Tyler v. considering the fact that the access to formal adjudication, one Vickery, 517 F.2d 1089 (5th Circ. 1975). Commission did issue 798 part 55 commenter emphasized that the For the renewal applicant, the risk of licenses and processed 1,750 renewals requirements for a part 55 license error and the need for other procedures during 1987. necessitate subjective evaluations on is also reduced by the fact that the such issues as health, and Commission will permit the licensed 2. Differences Between Challenges to administration of the written operator to take the NRC requalification Proposed Enforcement Action and examination and operating test. See examination three times before denying Challenges to the Denial of the Granting Section 11-8-2-a of this notice. The the renewal application on the basis of or Renewal of a License Commission does believe that the the licensee's failure of the NRC One commenting utility requested typical issues in reactor operator requalification examination. 2 further justification of the Commission's proceedings for the granting or renewal Recommendation and approval of decision to grant formal hearings in of licenses are likely to concern other procedures such as cross- proceedings resulting from proposed performance on a written examination examination may occur, for example, enforcement action, but informal or an operating test. As set forth in part where resolution of substantial factual hearings in proceedings concerning the 55, however, these examinations test issues involving witness credibility, bias denial of the issuance or renewal of a knowledge, skills and abilities or veracity is essential to the license. It has been a long-standing pertaining to sp11cific technical and determination of a license renewal. Commission policy to provide the scientific matters (10 CFR 55.41(b), However, the Commission expects that opportunity for formal adjudication 55.43(b), 55.45, 55.57 and 55.59(a)). In the broad powers of a presiding officer regarding the Commission's enforcement addition, the Commission has issued in subpart L proceedings will permit fair, actions affecting licenses. This should standards for examination and grading correct and efficient decision-making in not come as a surprise in light of the of the tests. See NUREG-1021. 1 While typical reactor operator licensing severity and potential stigma of some parts of these examinations may proceedings. In any event, the Commission-initiated action for be less amenable to "objective" Commission need not provide formal revocation or suspension of a license, or evaluation than other parts, e.g., short adjudication for all hearings requested a civil penalty, as well as the propriety answer as opposed to multiple choice by initial or renewal applicants simply of formal procedures for adjudication of questions, the subject matter still falls because some hypothetical cases not such underlying issues as a material within the Commission's special before the Commission arguably may false statement and willful violation of a expertise and judgment. Even when require the use of formal procedures. rule or regulation (see 10 CFR 55.61). As substantial factual issues arise See FDIC v. Mallen, 488 U.S. 230, 247-48 noted above, the Commission does not regarding performance on a question or (1988). contemplate that the typical grounds of problem concerning technical or The Commission's conclusion that denial of an initial or renewal scientific knowledge or judgment, oral subpart L procedures are sufficient for application will generally involve these trial-type presentation may not be proceedings concerning the granting and types of issues. required. See Kerr McGee Corp. (West renewal of reactor operator licenses is Chicago Rate Earths Facility), CU-82-2, not altered by the emphasis of one B. Comments Relating to Specific 15 NRC 232, 259-60 (1982), aff'd sub nom. commenter, the law firm representing Provisions of Subpart L City of West Chicago v. NRC, 701 F.2d five utilities, on the rarity of hearings 632 (7th Cir. 1983), and cases cited 1. Proposed § 2.1201-Scope of Subpart concerning part 55 licenses and the therein. Indeed, in these types of cases, relatively smaller volume of part 55 The law firm representing PROS the right to cross-examination may serve licenses as compared to material declared that it was not possible to little or no purpose, and result only in licenses. Despite the history of a small discern the circumstances to which the futility or delay. See Buttrey v. United number of reactor operator licensing proposed rule would and would not States, 690 F.2d 1170, 1182 (5th Cir. 1982). hearings, reduced cost and delay while apply. In particular, this commenter felt The possibility or existence of maintaining fair procedures should that proposed§ 2.1201(b) was extremely professional disagreement over an remain important objectives for both the vague. Other commenter& did not appear applicant's health, for example, does not Commission and the parties. In addition, to have this difficulty. The Commission suffice to create a specter of the cost of one or more formal hearings sees no need for any change in the questionable credibility or veracity. See in reactor operator licensing cases could proposed amendments, but will explain Mathews v. Eldridge, 424 U.S. at 344. in fact provide substantial. In each briefly the application of the Moreover, an applicant who is denied a formal proceeding, a three-member amendments. Section 2.1201(a) clearly license because of failure to pass the licensing board or an administrative law provides that the rules of subpart L will written examination or operating test, or judge must be appointed, and with that govern procedures in an adjudication would also generally follow the costs of initiated by a request for a hearing in a

• Copies of NUREGS may be purchased from the formal discovery, prefiled testimony and proceeding for the granting, renewal, or Superintendent of Documents, U.S. Government a trial-type hearing with oral testimony license-initiated amendment of an Printing Office, P.O. Box 37082, Washington, DC 20012-7082. Coples are also available from the of the witnesses and cross-examination.

National Technical Information Service, 5285 Port For instance, real costs associated with

• Pursuant to NRC policy, the trial-level Royal Road, Springfield, VA 22181. A copy is also formal, trial-type adjudications arise proceedings conducted in formal subpart G available for inspection and/or copying at the NRC adjudications are usually held near the applicant or Public Document Room, 2120 L Street NW. [Lower licensee involved, and this often requires renting a Level), Washington, DC. 2 NUREG 1021, Rev. 8, ES-SIS (June 1, 1990), hotel conference room or similar facility.

I 2-SC-68

PART 2 STATEMENTS OF CONSIDERATION operator or senior operator license. On due process as warranting trial-type either subpart L or subpart G, will be the other hand, the proposed proceedings in many cases, particularly very high. The Commission shares the amendment of§ 2.1201[b) provides that for renewal applicants. The Commission concern that intervention not be the formal procedures of subpart G will has responded to many of this indiscriminate, such as for the purpose govern an adjudication regarding an commenter's views on due process in of creating unnecessary delay. However, operator or senior operator license that section 11-A-1, above. While the the Commission believes that the arises from a request for hearing under Commission differs with some of the existing procedures and judicial subpart B of 10 CFR part 2 on an order commenter's views on the standards for standing will provide fair to show cause, an order for modification circumstances which are likely to and sufficient scrutiny of petitions for of license, or a civil penalty. An order to warrant use of other procedures, explicit intervention (See 10 CFR 2.1205]. Under show cause under subpart B is the authorization of an early vehicle for the subpart L, for example, the petitioner for mechanism by which the Commission applicant's identification of case- intervention must show how its interests would generally act to revoke or specific needs for other procedures is will be affected by the proceeding and suspend a license. Thus, the desirable. Thus, the final rule amends identify the concerns of the petitioner Commission contemplates that the § 2.1205[b) so as to authorize the (10 CFR 2.1205 [d), [j)). The presiding formal procedures of subpart G will applicant to request, within the request officer must determine that the specified govern proceedings to revoke or for a hearing, "that the presiding officer areas of concern* are germane to the suspend an operator or senior operator recommend to the Commission that subject matter of the proceeding, and license subject to part 55. The proposed procedures other than those authorized that the petition is timely and meets the amendment of§ 2.1201(b) also would under this subpart be used in the judicial standards for standing (10 CFR make the formal procedures set forth in proceeding, provided that the applicant 2.1205 [g], (j)(3J). Indiscriminate subpart G applicable to an adjudication identifies the special factual intervention is, in fact, likely to be initiated by a notice of hearing issued circumstances or issues which support difficult under the present standards under § 2.104, or a notice of proposed the use of other procedures." inasmuch as the proceedings will action under § 2.105. The Commission's Under § 2.1209, the presiding officer generally focus on issues peculiar to the construction of§§ 2.104 and 2.105 is set already "has the duty to conduct a fair applicant's or operator's qualifications forth in West Chicago, 15 NRC at 244-- and impartial hearing according to law" for the position.

46. Application of these provisions to and "has all power necessary to those In promulgating subpart L, the reactor operator licensing under part 55 ends, including the power to * *

• Commission indicated that the "distance would arise if the Commission (d)ispose of procedural requests or standard" established by NRC case law determined that the public interest similar matters." Nothing in subpart L for standing in nuclear reactor licensing required a formal hearing on a particular expressly prohibits the applicant who is proceedings, whereby persons residing application for, or amendment to, a subject to subpart L procedures from within about fifty miles of a facility reactor operator or senior operator asking the request for hearing, or generally are considered to have license. Of course, this rulemaking separately, that the presiding officer standing, was not applicable to material record-indicates that the Commission exercise the power to "(r)ecommend to licensing proceedings (February 28, 1989; does not expect that it will be making the Commission that procedures other 54 FR at 8272). The Commission will the requisite determinations under than those authorized under [subpart L) take this opportunity to clarify that the

§§ 2.104 and 2.105 with regard to reactor "distance standard" is not automatically operator licensing proceedings. be used in [the) proceeding" (See 10 CFR 2.1209(k]J. Nonetheless, explicit applicable to reactor operator license

2. Existing § 2.1205-Request for a recognition of an opportunity under proceedings. The standing of a petitioner Hearing; Petition for Leave To Intervene subpart L for applicants to request other in each case should be determined upon

a. Requests for formal adjudication. procedures within their request for the basis of the circumstances of that One utility and the law firm hearing clarifies the procedural scheme case as they relate to the factors set representing five utilities urged that the and thereby enhances the applicant's forth in § 2.1205(g).

Commission add a provision that access to other procedures where c. Appeal of the denial of a request for explicitly permits an operator to request appropriate. The Commission is not hearing. Section 2.1205(n] of subpart L formal adjudication upon a showing of altering, however, the necessity of the currently permits appeal of an order good cause or special circumstances. Commission's authorization of the use of denying a request for a hearing (or The latter commenter recommended other procedures. Thus, the new petition for intervention] in its entirety specifically an amendment of existing provision only authorizes the applicant within ten days of the service of the § 2.1205(b) so as to provide explicitly to to request that the presiding officer order. The law firm representing five the part 55 license applicant "who is make the necessary recommendation to utilities requested that the Commission issued a notice of proposed denial or a the Commission. amend existing § 2.1205(n] so as to notice of denial" the opportunity to b. Standing for intervention. One permit an immediate appeal of a include in his or her request for hearing utility urged the specification of a strict presiding officer's denial of a request for a specific request for formal test for standing for intervention in a formal hearing. As discussed below, adjudication. The amendment would operator license proceedings. this commenter also recommended that require that the applicant include with Specifically, the commenter suggested the Commission give the presiding the request an explanation of the that persons other than the operator officer the power to grant a request for a circumstances requiring such formal licensee or applicant be required to formal hearing. The Commission procedures as discovery and cross- demonstrate that it will present declines to adopt this recommendation examination of witnesses. This evidence that would materially alter the for the following reasons. The existing commenter conceded that the outcome of the NRC hearing decision. procedure for an immediate appeal is procedures in subpart L are generally NUMARC also recommended a premised upon the denial of any hearing appropriate for hearings on part 55 clarification that the threshold of as a final bar to adjudication. This is a licenses, but analyzed the balancing standing for intervention in reactor far different circumstance for appeal factors for determining administrative operator licensing adjudications, under than a mere denial of a request to use 2-SC-69

PART 2 STATEMENTS OF CONSIDERATION formal procedures for a hearing that is subject of the hearing. The Commission application is necessary and in fact granted. Indeed, completion of notes that§ 2.1211 already states that appropriate. The foregoing discussion the informal adjudication may resolve "(t)he presiding officer may permit a constitutes the regulatory analysis for the requestor's concerns. Additionally, person who is not a party to make a this final rule. the Commission sees no reason to carve limited appearance in order to state his Regulatory Flexibility Certification out for reactor operator hearing or her views on the issues" (10 CFR questions a special exception to its 2.1211(a) (emphasis added)). The rule As required by the Regulatory existing procedures on interlocutory also requires that the request for Flexibility Act (5 U.S.C. 605(b)), the NRC appeal and review. governmental participation "state with hereby certifies that this final rule does reasonable specificity the requestor's not have a significant economic impact

3. Existing § 2.1209-Presiding Officer's areas of concern about the licensing upon a substantial number of small Powers activity that is the subject matter of the entities. Many operator license The law firm representing five utilities proceeding" (10 CFR 2.1211(b] (emphasis applicants or operator licensees fall recommended that the Commission added)). Although the nonparty within the definition of small businesses amend existing § 2.1209(k) so as to participant may not be required to take found in section 34 of the Small Business authorize the presiding officer in a part a position on the issues, the views to be Act, 15 U.S.C. 632, or the Small Business 55 hearing to grant a request to use other expressed must relate to the issues that Size Standards set out in regulations adjudicatory procedures. Currently, the are properly subject to challenge in this issued by the Small Business presiding officer's power under type of proceeding. As with the . Administration at 13 CFR part 121, or

§ 2.1209(k) is limited to a consideration of a petition for the NRC's size standards published recommendation that the Commission intervention, the presiding officer may December 9, 1985 (50 FR 50241). The authorize the use of other procedures for determine that the views to be final rule should reduce the litigation a particular proceeding. The expressed are not germane to the cost burden upon applicants or licensees recommended change might slightly proceeding and therefore may deny the because of the informal nature of the expedite decisiomp.aking on a request request for nonparty participation. For hearing, although submission of filings for more formal adjudication. However, these reasons, the Commission sees no and documentary information detailing the Commission believes that the small need for other clarification of the limits contested legal and factual issues is still potential benefits of the change are on nonparty participation. required. Cost reduction in comparison outweighed by the benefits of its to the cost of participating in a formal retention of the ultimate determination. Environmental Impact: Categorical Exclusion adjudicatory hearing can be anticipated, For instance, a decision by the although it cannot be estimated with Commission serves the interests of The NRC has determined that this certainty whether that reduction as a uniformity of decisionmaking, full final rule is the type of action described whole will be significant. It is clear that consideration of the potential in categorical exclusion 10 CFR use of informal hearing procedures commitment of costs and resources, and 51.22(c](1]. Therefore, neither an should not increase the burdens of a administrative finally. environmental impact statement nor an hearing upon an applicant or licensee. This commenter also recommended environmental assessment has been amendment of § 2.1209 so as to prepared for this final rule. Backfit Analysis authorize the presiding officer to The NRC has determined that the Paperwork Reduction Act Statement entertain a specific request for a formal backfit rule, 10 CFR 50.109, does not adjudication or for certain formal This final rule contains no information apply to this final rule and, therefore, procedures in the course of the hearing collection requirements and therefore is that a backfit analysis is not required if the need for these types of procedures not subject to the requirements of the because these amendments do not becomes apparent. A presiding officer, Paperwork Reduction Act of1980 (44 involve any provisions that would however, already has authority to U.S.C. 3501 et seq.). impose backfits as defined in 10 CFR entertain these types of requests during Regulatory Analysis 50.109(a)(1). the course of an informal hearing. Nothing in subpart L prohibits any party The Atomic Energy Act affords List of Subjects in 10 CFR Part 2 from presenting this type of motion to interested persons the right to a hearing Administrative practice and the presiding officer during an informal regarding a reactor operator licensing procedure, Antitrust, Byproduct proceeding (See 10 CFR 2.1237). proceeding. As the Commission material, Classified information, Moreover, the Commission need not and previously indicated in its decision in Environmental protection, Nuclear probably could not specify all or even West Chicago, 15 NRC at 241, the use of materials, Nuclear power plants and most types of procedural motions and informal procedures generally involves reactors, Penalty, Sex discrimination, supporting circumstances that could be less cost and delay for the parties and Source material, Special nuclear presented during the course of an the Commission than the use of formal, material, Waste treatment and disposal. informal hearing. trial-type procedures, the principal other procedural alternative. Also, procedures For the reasons set out in the

4. Existing§ 2.1211-Nonparty must be in place to allow for the orderly preamble and under the authority of the Participation conduct of those adjudications. Atomic Energy Act of 1954, as amended, NUMARC expressed concern about Codifying the informal hearing the Energy Reorganization Act of 1974, the application of § 2.1211 of subpart L, procedures for operator licensing as amended, and 5 U.S.C. 552 anci 553, which provides for participation in a proceedings is preferable to the present the NRC is adopting the following hearing by a person not admitted as a practice of establishing the procedures amendments to 10 CFR part 2:

party, including a representative of an to be followed on a case-by-case basis. interested State, county, municipality or By codifying the proce'clures, the agency thereof. Section 2.715 of subpart Commission will avoid the expenditure G contains similar provisions. The of time and resources necessary to commenter recommends that the prepare the individual orders that commission clarify that nonparties previously have been used to designate should not be able lo use individual those procedures. This final rule is the operator license proceedings to address preferred alternative and the cost an issue other than an issue that is the entailed in its promulgation _and 2-SC-70

PART 2 STATEMENTS OF CONSIDERATION 55 FR 42944 commissioners will replace review by referred to the Commission under this Published 10/24/90 appeal boards*constituted from the transition plan. Effective 10/25/90 Atomic Safety and Licensing Appeal The final rule being issued today Panel. The Commission has decided to amends certain of the Commission's 1DCFR Part 2 abolish the Appeal Panel. The notice of regulations to make them consistent RIN 3150-ADn proposed rulemaking proposes to adopt with this transition plan. Thus, the a discretionary system of Commission authorization for appeal boards to Interim Procedures for Agency review and invites comments on that choice and on what particular exercise the authority and perform the Appellate Review review functions which would otherwise procedures should be adopted. AGENCY: Nuclear Regulatory This final rule implements the plan the be exercised and performed by the Commission. Commission is adopting to provide for Commission irt 10 CFR 2.785 and 2.1255 ACTION: Final rule. an orderly transition from appellate is revoked with respect to new appellate review by appeal boards to appellate matters. 10 CFR 2.788 is amended to

SUMMARY

This final rule puts into place review by the Commission. The make clear that stay requests in the a transition plan which the Nuclear Commission has determined that an interim period are not to be filed with an Regulatory Commission (NRC) is orderly transition will be assisted by the appeal board unless closely related to a adopting to handle all appeals from commissioners taking to themselves, matter currently pending before the initial decisions of presiding officers in with certain exceptions, all appeals and appeal board. Similarly, 10 CFR 2.1015 is aU formal and informal agency other appellate and related matters amended to make clear that appeals adjudications, and certain other (including appeals from initial decisions, governed by that regulation are to be appellate and related matters, which are interlocutory appeals and motions, filed with the Commission and not with filed from the day after the date of certified questions, referrals and an appeal board.

publication of this final rule until the petitions for directed certification) filed effective date of aiinal rule to be issued The Commission's procedure in 10 in the period beginning one day after CFR 2.786 for filing a petition for review

• pursuant to the Commission's ongoing publication of this document and ending rulemaking proceeding for establishing on the effective date of a final rule. The of an appeal board decision or action procedures for direct agency appellate Commission review during this interim with the Commission remains effective review by the Commission. A notice of period will follow existing procedures. for cases pending before an appeal proposed rulemaking in that proceeding Thus the present right of parties to a board on the date of publication of this is..*being published in this issue of the mandatory review on the merits of notice. Such a petition for review will be Federal Register. As that proposed rule initial decisions will not be affected. All superfluous and will not be available to explains, a new procedural system for appeals and other appellate and related a party whose appeal is heard by the direct appellate review by the matters pending before an appeal board Commission under the transition plan.

Commission is necessitated by the on the date of publication of this notice However, the Commission's procedure Commission's recent decision to abolish will be decided by the appeal board

• at § 2.771 for petitioning for the Atomic Safety and Licensing Appeal under current regulations. reconsideration of a Commission Panel which heretofore *has provided an This transition plan will enable decision remains effective.

intermediate level of appeal as of right appeal boards to conclude their work on Because this amendment preserves from initial decisions. The transition pending appeals without interruption by the right of parties to a merits review of plan implemented by this final rule new ones. In addition, by allowing initial decisions of presiding officers and provides that, with certain exceptions, appeal boards to complete all pending relates solely to matters of agency the Commission, rather than an appeal matters the work already expended on practice, notice of proposed rulemaking board, will provide agency appellate these matters will not be lost. The Commission has allowed for an and public procedures thereon are review for appellate matters filed in the interim period between the day after the exception to the requirement that all unnecessary and the amendment may date of this final rule and the effective new appellate matters be filed with it. If be made effective upon publication date of a final appellate review rule. The a filing is closely related to a matter without deferring effectiveness for 30 Commission review, in this interim currently pending before an appeal days. period, will follow existing procedures. board, it should be decided by the Environmental Impact: Categorical Specific appellate matters which are appeal board even if it is filed after the Exclusion pending before appeal boards on the date of publication of this final rule. For date of this final rule will be decided by example, a motion for stay pending an The NRG has determined that this the appeal boards. appeal on a matter that is pending final rule is the type of"iiction described EFFECTIVE DATE: October 25, 1990. before an appeal board should be in categorical exclusion 10 CFR FOR FURTHER INFORMATION CONTACT: decided by the appeal board even if 51.22(c)(1). Therefore, neither an filed after the effective date of this final environmental impact statement nor an E. Neil Jensen, Senior Attorney, Office rule. Under this exception the of the General Counsel, U.S. Nuclear environmental assessment has been Commission expects the appeal board to prepared for this final regulation. Regulatory Commission, Washington, continue performing its currently DC 20555. Telephone: 301-492-1634. pending appellate functions in the Paperwork Reduction Act Statement SUPPLEMENTARY INFORMATION: In a Seabrook operating license proceeding. companion document published in this This final rule does not contain a new This will conserve agency resources issue of the Federal Register, the NRC by assuring that an appeal board will be or amended information collection announces a proposed rulemaking to able to make use of its familiarity with a requirement subject to the Paperwork establish procedures for direct review of case to decide pending matters Reduction Act of1980 (44 U.S.C. 3501 et initial decisions of presiding officers in connected with the case. The appeal seq.). Existing requirements were all formal and informal agency board is to decide in the first instance approved by the Office of Management adjudications by the commissioners of whether papers filed with it should be and Budget approval number 315<HJ136. the NRG. Direct review by the 2-SC-71

PART 2 STATEMENTS ~F CONSIDERATION Regulatory Analysis FOR FURTHER INFORMATION CONTACT: repository. The revised rules indicate Michael T. Lesar, Chief, Rules Review that the Commission will specify the The Commission needs a plan to Section, Regulatory Publications Branch, jurisdiction of the pre-License achieve an efficient transition between Division of Freedom of Information and Application Presiding Officer in agency appellate review by appeal Publications Services, Office of

• designating the officer pursuant to theRa boards and agency appellate review by Administration, U.S. Nuclear Regulatory amendments.
• the Commission. The transition plan put Commission, Washington, UC 20555,
• in place by this rule change will have no EFFECTIVE DATE: March 28, 1991.

telephone: 301-492'-7758.

• effect on parties other than to change FOR FURTHIER INFORMATION CONTACT:

the forum for appellate review of initial Kathryn L. Winsperg, Senior Attorney, decisions in affected proceedings. The or Stuart A. Treby, Assistant General transition plan will, however, enable Counsel, Rulemaking and Fuel Cycle appeal boards to complet~ th~ir work on Division, Office of the General Counsel, existing cases without bemg mterrupted U.S. Nuclear Regulatory Commission, by new appeals. By leaving all pending Washington, DC 20555; Telephone (301) appellate matters for resolution by 492-1636. appeal boards, this transition plan also SUPPLEMENTARY INFORMATION: prevents any potential loss in the efforts 56 FR7787 already expended by an appeal board. Published 2/26/91. Background Thus the cost entailed in the Effective 3/28/91. In adopting the final rule on the promulgation and application of th~s Licensing Support System (LSS) final rule is necessary and appropriate. 10 CFR Part 2 promulgated on April 14, 1989 (54 FR The foregoing discussion constitutes the RIN 3150-AD27 14925), the Commission added a new regulatory analysis for this rule. uubpart J to 10 CFR part 2 which Procedures Applicable to Proceedings* established the basic procedures for the Bacldit Analysis tor the Issuance of Licenses for the This rule does n~t modify or add to HLW licensing proceeding including the Receipt of High-Level Radioactive systems, structures, components, or Waste at a Geologic Repository use of the LSS in the proceeding. The new subpart was primarily the result of design of a production or utilization a negotiated rulemaking proceeding AGENCY: Nuclear Regulatory facility; the design approval or . Commission. conducted with the participation of DOE manufacturing license for a production nod other parties potentially affected by or utilization facility; or the procedures ACTION: Finni rul11.

                                                                                         . the 1-ll.W licensing proceeding.

or organization required to design,

SUMMARY

The Nuclear Regulatory construct, or operate a production or However, when the Commission Commission is amending its regulations promulgated these rules, the utilization facility. Accordingly, no concerning the Rules of Practice for the backfit analysis pursuant to 10 CFR Commission stated that it might be licensing of high-level radioactive waste necessary to make further changes to 50.109 is required for this final rule. at a geologic repository [HLW these rules in order to-streamline the List of Subjects in 10 CFR Part 2 proceeding). The revised rules enhance licensing process. As the Commission the Commission's ability to comply with noted in the Supplementary Information Administrative practice and the schedule for the Commission's procedure, Antitrust, Byproduct section of ilie April 18, 1989, final rule-decision on the construction material, Classified information, ,authorization for the reposUory * *

• the Commission ls committed to do Environmental protection, Nuclear everything it can to atreamline lts licensing materials, Nuclear power plants and contained in section 114(d) of the process and at the same time conduct a reactors, Penalties, Sex discrimination, Nuclear Waste Policy Act of 1982, as thorough safety review of the Department of Source material, Special nuclear amended, [NWPA),* while providing for. Energy's application to construct e high-level material, Waste treatment and disposal. the thorough technical review of the waste repository. The negotiators to this license application and the equitable rulemaking have mode 11 number uf For the reasons set out in the improvements to our existing procedures.

preamble and under the authority of the treatment of the parties to the hearing.

• The revised rules for the HLW However, more improvements may be Atomic Energy Act of 1954, as amended, necessary if the CommiBSlon Is to meet the the Energy Reorganization Act of 1974, proceeding establish a new standard for tight licensing deadline established by the as amended, and 5 U.S.C. 552 and 553, the admission of initial contentions, Nuclear Waste Policy Act of 1982,as the Nuclear Regulatory Commission is define ;'late contentions" as any emended. By publishing this rule, the adopting the following amendments to contention proposed after the initial Commission Is not ruling out further changes contentions are submitted, establish a to the rules contained in the negotiated 10 CFR part 2: compulsory hearing schedule, and rulemaking. 54 FR ,4925, 149~0.

55 FR51401 specify that there will be no sua sponte review by the Commission's After further study, the Commission Published 12/14/90. published a notice of proposed adjudicatory boards. The revised rules also clarify that the LSS Administrator's rulemaking presenting amendments to 10 CFR Parts 2, 73, 110 and 171 its Rules of Practice for the HLW written report and periodic evaluations Miscellaneous Amendments; of the Department of Energy's (DOE) licensing proceeding and inviting public Correction compliance with the LSS requirements comment (September 28, 1989: 54 FR willbe circulated to potential parties 39387). The specific revisions proposed AGENCY: Nuclear Reguiatory involved a new slandard for initial Commission. who must timely file any objections they may have to the Administrator's contentions, a new definition of "late ACTION: Final rule; correction. contentions", a requirement of direct evaluations or report or risk waiving their objections. In addition, the rules testimony on contentions, a compulsory

SUMMARY

This document makes minor hearing schedule, elimination of suo corrections to the January 1, 1990, Code clarify the Commission's authority to designate a Pre-License Application sponte review by adjudicatory boards, of Federal Regulations (CFR) volumes the potential parties' rights to receive that comprise 10 CFR chapter I. This Presiding Officer to resolve disputes during the period prior to the receipt of and file timely comment upon the LSS action is necessary to correct errors and Administrator's evaluations and written omissions in the codification of 10 CFR the formal application for the construction of the high-level waste report on DOE's compliance with the parts 0-50 and 10 CFR parts 51-199.

2-SC-72

PART 2 STATEMENTS OF CONSIDERATION LSS requirements, ilnd the Commission's proceeding, as well as the strict time Commission had e:,q,1lcitly *stated the ability lo appoint and specify the

• deadlines imposed in section lU(d) of intention to ewluete further the *subpart jurisdiction cl the Pre-License , the NWPA, the Commission'sought to J rules in:general 154 FR:14925; April '14, AppUcation lTeiii~g Offioer. The formulate new, efficient, and* 1989,, and 11pecffically to revisit the Commiss.ion also proposed .some issues streamlined procedures w1th the issue of the threshold for initial for inclusion in the Notice of Hearing. assistance of those parties which would contentions in light of-the-later The comment period for foe proposed probably be nffect.ed by the HLW resolution of the then pending ruie expired November 27, .1989. The licensing proceeding. consideration of changes to subpart G Commission received six .comments In the notice of eatahlishment of the regulations (id. at 14931),'The including comments from Florida Power Negotiating Committee, the Commission amendments that ere the subject of this

& Light Company (FPL), the National announced that any consensus of the rulemaking proceeding were either Congress of American Indians (NCAI), Negotiating Committee would only he .. proposed to bring the 11111:!part J Mal achy Murphy for the State t:if

• the basis for the agency's issuance of a regulations into conformity with subpart Nevada (Nevada), the Department of proposed rule for notice and <:omment. *
• G regulations. which apply in other Energy (DOE), the Edison Electric . "The consensus is not the basis per se licensing proceedings, ,or were _proposed lnstitutefUtility Nuclear Waste and for the final ru1e which the agency will to enhance further the Commission's Transportation Program .(EEI/ develop after traditional no'tice and ability to meet deadlines and conduct a UWASTE), and jointly from the comment procedures" (SZ FR.29024; fair and effectiy,e .HLW licl!ZISing Environmental Defense Fund, f'riends *of August 5, 1987). proceeding.

the Earth, *and the Natione1 Audubon According to the committee's pro1oi:oI.* The mechanism of ptib1lc rulemaking Society 1environmental groups3, "consensus" was defined as no with notice and comment pursuant to Summary-0f Comments dissenting vote by any committe!! the Administrative Procedure Act, is a member*on a matter-before the necessary element .of -the Commission's A.*Generol committee for approval. The Negotiating_ powers. In addition to the negotiated Although the proposed re'lisions were Committee did not ultimatc1y reach rulemaking wbich a11owed advisory generally supported by DOE, EEi/ consensus due to the dissenting vote of Input by p*otentially affected parties, this UWASTE, and FPL, the three other the industry *coalition member. Although rulemaking procedure is contributing commenters raised atrong,genera1 the industry coalition dissented in t1II!

• substantially to the Commission's ability objections lo the Commission's fina1 *vote, it participated ful~y in the to fulfill .effectively and efficiently its consideration of revisions to subpart J drefting*of the 11ubstaritive part11 -of the responsibilities in 1he contemplated which require some *discussion. Nevada, agreement and -dinented in 'the -end t1ver novel and technically complex HLW NCAI, and the environmental groups the broader question of whether the LSS licensing proceeding.

protest the Initiation of this rulemaking was a cost-effective method *to achieve* procel!ding to adopt revisions to the the goal of streamlining the licensing B. Comments on Specific Proposals .with procedaral rules .agre.ed to by the LSS process. Therefore, in spite of the lack of Responses Negotiating Committee 'less than six consensus, the Commission :published a

• The sections which follow contain ca months after their adoption. *These notice of proposed rulemaking inviting . description of the amend.menm, ;a commenters assert *that their
• public comment, 'based on the product -of swnmal'f .i,f the 1comments ireceived and participation in the give 11t1d talce 'Of fhe the Negotiating Committeel.e efforts '5S an NRC r.esponse . .

negotiations was 'based upon a good FR 44411; November 8;!.988}."The faith effort to achieve consensus end Commission rec,e'ived -comments end 1. Standards for Initial Contentions

\hat the Commission's attempted                               duly adopted e final rule {54 FR 14925;         (I 2,"1014) revision of the recently adopted rules                       April 14, 1989).             *                   , The ;amendment11 to 1 :2.1014 reflects bad .fai!h in ,the negotiating                          Thus the intensive work ,of the             inco1porate a .similar 11tandard f.or process. The commenters -state that the                       Negotiating-Committee Tesu1ted In ihe           admission of initial <:imtentions to 1ha t future integrity of the negotiated                           enactment m part 2 subpart J regultltiomi       now incorporated in IIIlbpart G, I 2;7!1.4, rulemaking process tmd *their own trust :

• to !acilita te the creatfon tJf 'the LSS. adopted in the .f.md .t1ule on r.egulatary and future willingness 'to partlclpe1e are These regula tion11 -reflect 11ignificant new reform {54 FR 118188; August U, 1.989}.

threa1ened 'by the Commission'! *actions. efficiency in the _procedures applica'b1e The.,e amendments raise the !threshold In announcing the possible formation to the HLW lice~sing proceeding. for the admission of contentions to of an advisory committee for negotlated However, the*Commission "is *obligated require the proponent-ct! the -contention rulemaking,(51 FR45338; December 18, to fulfiU its ultimate 1-esponsibility to to -supply information showing the 1986). and at every subsequent stage *cf irisure that its procedural *rules will existence of a genuine dispute with the the negotiated rulemaking process, the 1 facilitate compliance with its statutory applicant -on an issue of law ,or fact. The Commission has clearly stated that:it responsibilities under the NWPA. contention must ,be supported :by a retains the responsibility .for fonnulatins . In the time snbseguent to the adoption concise :atatement-.f ,the .alleged facts -or the final rules for the HLW licensing of the final ruTes for .subpart J, 'two expert opinion, together with specific proceeding. The Commission has 1hc events intervened. First, revisions to the sources and.documents of which the ultimate responsibility to ,cir.aft Rules of Practice. for domestic licensing petitioner *is aware, whioh will be relied regulations to implement statutory proceedings, -part 2, subpart -G, were upon to establish the facts or.expert

• provisions in its purview. Because of the adopled on August 11., '1989 (54 FR 33168, opinion. Absent a sbowillg that there is novelty .and technical complexity of the affd. Union of Concerned Scientists v. a genuine dispute on a material is1111e af issues *involved m1he HLW licensing NRG. No. 89-161,.*[D:C. Cir., November fact or law, the .conteation will ,not be 30, 1990)). Second, an internal review admitted. Admission of a contention 1 See Nolice-of Propo1ed RulemHking,*Novem'bOI'*
• was conducted to consider possible may also be refused lfit a_ppcars that 3.1988:(53 PR 114411'),reserdJnalhe opportunity far other participants to comment and ms pond Jo ,1111y improvements to 1he _procedural ndes in the contention, e:ven if proyen, wou1d be crilicism,or potenllal revision of the text 11fler the subpart J. In the 'Statement of of no consequi.mce*ln the p~eeding Cnnnms*iun considered comments In *the pro,cclllns, Considerations to the subpart J rules, the because It would !IOI !!ntitle the 2-SC-73

PART 2 STATEMENTS OF CONSIDERATION petitioner to relief. Finally, the "paragraphs (a)(2) (ii), (iii) and (iv) of reasonable specificity" have been amendments would provide that a this section". The amended version of eliminated from paragraph (a)(Z)(ii), as contention raising only an issue of law this paragraph refers only to paragraph this subject is now covered in paragraph will not be admitted for resolution in an (a)(2)(iii) of this section, although no (a)(Z)(iii)(B). The words "As to each evidentiary hearing but must be decided changes are proposed to § 2.1014(a)(2) contention" have been eliminated from on the basis of briefs and any oral (ii) and (iv). The commenter suggests paragraph (a)(2)(iv) end the remainder argument that may be held. that there does not appear to be any of this provision has been redesignated While EEI/UWASTE (FPL also reason to delete the reference to these paragraph 2.1014(a)(2)(iii)(E) to maintain supports the specific comments of EEI/ two paragraphs and that the reference parallel construction in this section. UWASTE) supports the Commis'sion's should be reinstated. NCAI objects that the amended discretion to conform the requirements The Commission agrees and is standard for initial contentions (and the for initial contentions to* the adopting a minor revision to the subpart G revisions with which it is requirements in subpart G, the amended rule to restore the reference to consistent) is.unwarranted and violative commenter states that the availability of paragraph (a)(2)(ii). However, in of the Atomic Energy Act, section 189(a) the information in the LSS data base connection with the amendments, hearing right and due process. The and of certain types of discovery during several minor editorial changes are also commenter states that only a well the pre-license application phase . necessary for clarity and parallel financed intervenor will be able to get warrant a more substantial threshold for construction which' slightly modify any contentions admitted because the contentions. EEI/UWASTE suggests paragraph (a)(2)(ii) and redesignate high initial standard for admission of that, at a minimum, the Commission

• paragraph [a)(Z)(iv). The proposed rule contentions assumes extensive access to should require a proffer in affidavit or (no changes were proposed for the LSS which may not be possible for other evidentiary form to demonstrate
• paragraphs (a)(2)(i), (ii), end (iv)) reads many parties on a limited budget.
• that a genuine dispute exists concerning as follows: Therefore it may be impossible for a a material fact or law issue. small tribe or organization to participate The Commission disagrees that a [§ 2.1014(a)) (2) The petition shell set forth with pertlculerit)'- at all.

higher threshold is warranted for the (IJ The Interest of the petitioner in the Nevada also comments that the admission of initial contentions. An proceeding, end how that Interest mey be requirements for Initial contentions of intervenor should not be required to affected by the results of the proceeding, intervenors are more rigorous than the prove its case at the stage of the Initial including the reasons why petitioner should requirements imposed upon the submission of contentions. This rule's be permitted to intervene, with particular applicant, and* that this criteria Is too requirement that sufficient infonnation reference to the factors in paragraph (c) of burdensome for members of the public be presented to establish the existence this section; * (ii) A list of the contentions that petitioner or groups of citizens who may wish to of a genuine dispute with the applicant intervene. on a material issue of fact or law allows seeks to have litigated in the matter, and tha the scope of the proceeding to be bases for each contention set forth with . The Commission disagrees with the defined and advanced without reasonable specificity; assertions that the proposed (iii) With respect to each contention: amendments are unduly burdensome prematurely eliminating legitimate (A) A specific statement of the issue of law contentions. end that it will be virtually impossible or fact, to ue raised or controverted. for persons who.wish to participate to EEI/UWASTE suggests that the (BJ A brief explanation of the bases of the language in § 2.1011(a)(2)(iii)(D) should have any contentions admitted. Under con ten lion. these rules, en Intervenor is not required be improved. As proposed, the section (CJ A concise statement of the alleged facts states that In determining whether a or expert opinion that support the contention to make Its full case et this stage of the genuine dispute exists: the Commission and on which the petitioner intends to rely In proceeding, however, the Intervenor is or the Presiding Officer "shall consider" proving the contention at the hearing, required to read the license application whether the contention, if proven, would together with references to those specific and Indicate that a specific genuine be of no consequence because It would sources em! ~ocu;ncnta c,f which the dispute exists as to a material issue of not entitle the petitioner to relief. The petitioner is aware and on which the law or fact. petitioner intends to rely to establish those In addition, sections 116 end 118 of commenter believes the language should facts or expert opinion. mandate rejection of the contention. the NWPA provide for financial (DJ Sufficient infonnation to show thi::t a The Commission considers that the genuine dispute exists with the applicant on 11 assistance to affected Indian tribes, to clear implication of the language stating material Issue of law or fact. This showing the State of Nevada, and to any affected that the Commission or the Presiding must Include references to specific unit of local government for Officer "shall" consider the factor of documentary material that provides a basis participation in the HLW repository whether a petitioner would be entitled for the contention, or If the petitioner believes licensing process. The availability of to relief is that this factor will be that any documentary materlol fails to

• these grants should mitigate the dispositive in deciding whether a contain infonnation on a relevant matter as financial burden of participation for genuine dispute exists. Therefore, lh!l required by law. the identification of esch affected parties.

failure end the supporting reasons for the The Commission has addressed, Commission does not believe that a petitioner's belief. In determining whether a revision is necessary. However, to genuine dispute exists on e material issue of rebutted, and! prevailed on judicial clarify that this Is a factor which the law or feet, the Commission or the presiding challenge (Union of Concerned Presiding Officer shall consider, a new officer shall consider whether the contention. Scientists v. NRC, No. 89-1617 (D.L. Cir.,

 § 2.1014(c)(5) has been added. Slightly      If* proven, would be of no consequence In the .       November 30, 1990)) against the revised language in § 2.1014(a)(2)(iii)(D)    proceeding because It would not entitle the           arguments that this higher threshold for remains to advise the parties that this is    petitioner to rellef.                                  contentions is Inconsistent with the
" dispositive factor.                              [Iv) As to each contention, the specific          hearing right'in section 189a of the EEI/UWASTE also suggests minor             regulatory c>r statutory requirement to which          Atomic Energy Act of 1954, as amended.

change in § 2.1014(a)(3] where the the contention is relevant. See The Commission's more detailed currently effective language refers to a In the final rule, the words "and the discussion regarding the adoption of the failure of a petitioner to comply with bases for each contention set forth with same higher threshold for contentions in

• 2-SC-74

PART 2 STATEMENTS OF CONSIDERATION other doroesti.; licensing proceedings 'in EE/UWASTE also suggests that Commission has, *therefore, added the subpart G, § 2;114 adopted at 54 FR § 2.1014(a)(4) does not appear to failui*e to participate in the LSS 88 8\ 33168: August 11, 1989, and the Court's incorpore te the requirements *of factor to be eonsider.ed. effinnaoce referenced above. I 2.1014(a)(2J{ii)-{iv), *although thi! Nevada supports this amendment and commenter postulates that 'this must affirms that this Teflects the original

2. Late-filed Contentiorn1 (§ 2.1014) have been the intention of the intent of the Negotiating committee.

The rule r~'.'lsee § 2.1014 to require Commission.

• that any contentions proposed efter !he The commenter is coITect that those 4. Direct Testimony on Contentions initial contentions have been filed must sections are intended to be referenced ( § 2.1024): Summary Disposition satisfy ihe higher standards for but the emended § 2.1-014(a)(4) does in (§ 2.1025) admission that is now set forth in fact incorporate the cited sections by The proposed rule added e new

§ 2.1014(a)(4) of subpart J. In eddHion to reference to the "balancing of the § 2.1024 requiring that a party who the criteria for initial contentions set factors specified in par.agrapb. {a](1) ,of sponsors a .contention ,must 'J]resent forth at } 2.1014{a)(l), a proponent of a

• this section:* Paragraph {al(l~ requires direct expert testimony to support that late-filed ~ontention has to demonstrate "satisfying those (factors] set.out in contention. 'The party's evidence may a

that the contention raises material paragraph8 (u)(2) and (c) of this not consist solely of cross-examination issue related to the performance section." of the license applicant's or the NRC evaluation required by 10 CFR 60.112 Nevada strongly objects that this stafrs Witnesses. end 60,113. The standard for late amendment removes an element that The requir.ement for a direct case also contentions remains the same as the was specifically agreed to by the would be applied to replies in existing rule; however, the amended rule Negotiating Committee, i.e.. the forty opposltion to motions for summary applies that standard to any.contention. day period immediately following the disposition under e new § ;?.1025. filed after the initial contfilrtions ar.e publication of the SER when contentions Summary disposition motions that ere submitted

• migbt still be filed without being suppo.rted by evidentiary.matcriel in tbe In evaluating whether the contention subjected lo the higher standard for late- form of 8ffidavi.ts would require an rnises "significant" ,or "materiel" issues, filed cont,mtions. The commenter points opposition to the summary disposition factors 11uch as whether a materially out that Ibis amendment will deprive the motion likewise to be supported :by different result in the proceeding might pa1*ties end the intervenors of the right affidavits.

be likely if the contention were to be to incorporate new iBBues raised by *the Motions Ior summary .disposition may admitted, or whether a modification in SER. be filed at any time. how.ever the facility design or 1:onstruction that The Commission.responds that the Commission anticipates that motions for substantially *enhances the protection of extensive Interaction in the pre-license summary disposition will be filed early. public health and safety would result if application phase between NRC, DOE. the contention were to be admitted, The Presiding Officer will have libera1 and affected parties such as the State of should be conslde1*ed. discretion to summarily dismiss or hold Nevada, as well as the early availability EEI/UWASTE supports thi ~ change in abeyance motions fi!ed shortly before of relevant documents through the LSS, which applies the late-filed contentions the hearing commences or .during the should aid in the formulati1m of initial standard to all contentions that are filed contentions. The need for late-filed hearing if considering the motion would after initial contentions. including divert substantial resources from the contentions should be .substantially contentions based on information reduced, yet, as described in the l'llle, hearing. contained in the Staff Safety Evaluation significant and.Im material lssues wUl Minor deletions of wording referring Report (SER). The commenter maintains be admitted a9 late-filed contentions. to discovery .methods {patterned after that the adequacy of the application is The Inter in the processing that a § 2.749) contained in !i 2.1025 (b) and (c) the issue, to the adequacy of the SER, contention is raised, tbe ,greater the of the proposed r.ule have been made in therefore the issuance of the SER should burden will be to demonstrate Hs the final rule to tailor .this section to the not automatically constitute good cause significance or materiality. The HLW licensing proceeding. The for late contentions. The commenter Commission i11 confident that the availability of1he LSS allows a different suggests further moditlcation to require revision will contribute to:an efficient framewodt nf disco\lll!ry .for this that a late-filed contenUon.must address hearing process. proceeding. a "new" and "significant" issue. The NCAI objects to the.changes in commenter asserts the admission lute in 3. Participation in the LSS (§ .2.1014) §§ .2.1024 and 2.1025 on the ground thot the process of contentions that raise Nt:w § 2.1014(c)(4) adds the failure of these provisions drastically raise 1be insignificant issues or those that ere not the petitioner lo participate in the LSS minimum co11ts of intervention hy new will imperil the schedule set by the a9 a factor to be .considered by the requiring intervenors to hire experts for Commission. Commission or the Presiding Officer in both testimony and affidavits. NCAI T11e Commise'ion responds that the ruling on petitions to intervene. This asserts that intervenors who cannot criterion of significance is already amendment restores a furm of a afford to do more skould<:ontinue to included in this section in the provision which the N11gotieting have the opportunity to *make their case requiremer..t that a **significant sHfety or Committee had proposed as a factorto by cross-examination only. Nt-veda also environmental issue is involved." The be considered governing admission 'to objects that the1:1e provisions impose on otner criterion involved is a "male1'iRI the high level waste proceeding. 'The intervenors additional expens~s which issue related lo the performance Commission remo*,red the provision in might not be necessary iftheiT evaluation anticipated by §'§ 60.112 end the subpart J rulemaking so that presentation were based on cruss-60.113," The Commission believes that participation would not be given weishi exemination of applicant's or the NRC the adjective; "significant" and as a factor in favor .of intervention. stafrs witnesses, or argument from "material" adequately restrict the However, the commission does not wish documents already in th1! record. *soth admissibility oflatesfiled contentions to remove entirely the provision's NCAI and Nevada note that there and encourage 1he early identification of beneficial effllct of encouraging .appears to be no purpose for these I <SUf!S in contl'ovcr*sy. participation in the I.SS. The requirements. 2-SC-75

PART 2 STATEMENTS OF CONSIDERATION With regard to I 2.1024, which would which would incorporate a model health and safety against undue require intervenors to present e direct hearing schedule substantially the S9.JJ.1e radiological risk and may also preclude case on contentions, the Commission as that originally set forth iri the effective public participation. has reconsidered the proposed rule with Supplementary Information of the LSS The Commission rejects the assertions the benefit of public comments received rule (54 FR 14925: April 14, 1989) and that the schedule is unrealistic or anci summarized abo\*e. The make the schedule mandatory with inconsistent with its statutory Commission agrees with commenters to some flexibility for the Presiding Officer obligations. This schedule was the effect that those parties whose to handle special circumstances. discussed by the Negotiating Committee contentions have been admitted and The Presiding Officer may grant with the participation of a full range of who believe a full disclosure of the facts extensiona of up to 15 days of any the parties that are likely to be affected regarding those contentions could be individual milestone for the parties' by the HLW licensing proceeding. The established by cross-examim1tion of the filings. Except for "exceptional and schedule illustrates how the statutory other parties or by reference to unforeseen" circumstances, requests for deadline can be met. The Commission materials already in the record might be extensions in excess of 15 days must be has reviewed! the schedule and finds forced to go to the extra expense end filed 5 days in advance of the deadline that it balances the need to comply with unnecessary expansion of the record to for which an extension is sought, and the statutory deadline with the need to present a direct case. On balance, the must be referTed _by the Presiding Officer insure effective public participation and Commission does not find a pressing to the Commission. If the CommiBBlon a thorough technical review of the need for imposing this requirement at does not act to disapprove the extension application. The Commission hes this time. Proposed § 2.1024 will not be within 10 days, the extension Is determined that this schedule should be adopted. effective. The final rule contains the adhered to unless special circumstances The Commission hus already additional clarification that if the dictate otherwise. reconsidered the requirement in Commission disapproves the requested proposed new § 2.1025 that an affidavit extension, the date which was the The Commission also rejects the be submitted in 'bpposition to a motion ass~rtion,that the findings in the subject of the extension request will be for summary disposition when the

• set for 5 days after the date of the Commlsaion's Waste Confidence motion for summary disposition is Commission's disapproval action. Deciaion have any bearing on the NRC's supported by an affidavit. The For Presiding Officer iesuances, the existing statutory duty, imposed in proponent of the motion for summary Presiding Officer may delay up to 30 section 114(d) of the NWPA, to make a dispositlon has the option whether or days beyond the date of the milestone decision on the Issuance of a not to submit an affidavit In support of set in the hearing schedule. lf the construction authorization for the its motion. It seems reasonable that the Presiding Officer anticipates that a repository within 3 years after the opponent of the motion should have the milestone will be exceeded by more submission of the DOE license same option whether to support its than 30 days, the Presiding'Officer shall application. The original Waste answer with en affidavit, based on its notify the Commission at least 10 days
• Confidence Proceeding resulted in a evaluation of how best to prevail before the scheduled date of the decision issued ~ugust 31, 1984. The against the motion. In particular, the opponent should have the option of milestone and provide a justification the delay.

for purpose of the proceeding was "to assess generi~lly the degree of attacking the legal sufficiency of the DOE suggests that the Commission assurance now available that proponent's motion and affidavits should provide a few examplee.of the radtoactive :,,.,.aste can be safely without submitting affidavits. This is "exceptional and unforeseen disposed of; to determine when such consistent with the parallel provision in circumstances" which would be ** disposal o.r offsite storage will be subpart C of part 2 which applies to permissible bases for an exception from available and to determine whether other domestic licensing proceedings, the rule in I 2.1026(b}(1} requiring radioactive waste can be safely stored

§ 2.749. The sentence requiring             requests for extensions of more than 15      oneite past the expiration of existing supporting affidavits has been removed        days to be submitted at least 5 days In     facilities licenses until offsite disposal and the clause, "with or without             advance of the required filing deadline. or storage is available" (49 FR 34650; orfidovits," has been restored to the           The Commission believes that it           August 31, 1984}. The Commission preceding sentence to read: ** Any party    would not be particularly useful to          reviewed the Waste Confidence may file an answer supporting or            provide examples of situations .that         Decision and proposed revisions to two opposing the motion. with or without         would meet these criteria. By definition,    of its five findings. (54 FR 39767:

affidavits, within twenty (20} days after "exceptional" and "unforeseen" September 28, 1989}. After considering service of the motion." circumstances are difficult to predict in the public comments, the Commission EEI/UWASTE supports the new advance. It should be sufficient to note approved the revision of the Waste

§ 2.1025 and further suggests additional     that the Commission expects that such       Confidence Decision (55 FR 38474:

changes to this section to require that exceptions would not be routine. September 18, 1990). The revised Waste answers supporting a motion for NCAI asserts that the adoption of a Confidence Decision takes into summary disposition also be mandatory schedule at this point in time consideration the development since the accompanied by supporting affidavits. defies reality and belies the time of the original decision in 1964. Due

  ~!though it might be desirable for a       Commission's inability to anticipate        to these events, there have been party to submit en affidavit with an        what might occur during the licensing        significant delays in the anticipated answer supporting a motion for              proceeding. Nevada finds It                  timetable for the construction of a summary disposition, the Commission          unreasonable for the Commission to          geologic repository. See Reassessment does not view this as necessary.             commit to the three year time frame         of the Civilian Radioactive Waste whh:h the NRC'11 proposed Waste             Management,Prosram, Report to S. Compulsory Hearing Schmlule                Confidence Decision **now finds to be       Congress by the Secretary of Energy,

(§ 2.1026) unnecessary." Nevada asserts that this November 29, 1989. Therefore, there The amendment adds II new § 2.1026 timetable may compromise the NRC's have been neccsoary changes in the und e new appendix D to subpart J statutory obligation lo protect the public Commission'o estimate of the timing of 2-SC-76

PART 2 STATEMENTS OF CONSIDERATION the availability of the repository. None reflect the t these are the "last § 2.1027 simply removes any remaining of these developments effectively practicable" dates for motions for uncertainty that sua sponte authority is mitigates the Commission's existing summary disposition. This wording has not granted to the Presiding Officer. statutory obligation to comply with the been chosen to emphasize that although The Commission also rejects the deadlines set in the NWPA, once the motions for summary disposition may be notion that the rule will have any effect application is filed. filed et any time, after these dates the upon the thorough consideration of EEI/UWASTE supports the hearing Presiding Officer will have liberal health and safety issues in this schedule provisions and finds that they discretion under § 2.1025 to summarily proceeding. The parties to this represent an appropriate combination of dismiss or hold in abeyance any-motion proceeding will include entities which firmness with flexibility. However, the for summary disposition if considering should be well prepar!ld after the commenter suggests that appendix D the motion would divert substantial extended pre-license application period and/ or § 2.1026 should be modified to resources from the hearing. and the availability of licensing reflect the possibility that some of the information in the LSS. The Commission actions in the hearing *schedule may be

• 6. Sua sponte [§ 2.1027) believes that there is little likelihood taken earlier than indicated on the* The new rule specifically prohibits the that a significant issue will be schedule. This might be accomplished, Presiding Officer 2 from raising issues overlooked. All parties will be focused for instance, if the Hearing Licensing that have not been placed in upon a thorough identification of the Board conducted portions of the controversy by the parties to the issues for Ii tiga tion.

proceeding in parallel, rather than in the proceeding. linear fashion. EEI/UWASTE asserts that the 7, Subpoenas(§ 2.1019) The Commission believes that the Commission is justified in withdrawing Under proposed amended§ 2.720(a), a suggested modification to the rule or to the use of SUD sponte authority in this party seeking to subpoena a hostile appendix D is not necessary because particular proceeding. The commenter* witness, other than NRC staff, would be schedule provisions do not prevent some observes that four governmental entities required to demonstrate the general actions from being taken earlier. As will be scrutinizing the application relevance of the testimony to the indicated in the section concerning the (DOE. the State of Nevada, the NRC contention. Under proposed Notice of Hearing, it is contemplated staff, and the Advisory Committee on § 2.720(h)(2)(v), the Presiding Officer is that subsidiary Boards may be Nuclear Waste) and that a fifth level of directed not to issue a subpoena appointed. Past licensing experience review is unnecessary. requiring the testimony of named NRC. indicates that conducting parallel Nevada objects that the new rule* personnel unless a showing Is made that hearings before several Boards Is an takes away a basic and essential the particular named NRC employee hes efficient way to meet a statutory attribute of judicial activity, the ability direct knowledge relevant to the . deadline. This procedure may be used in to recognize issues in a proceeding contention, i;,nd the testimony sought is the repository licensing proceeding. affecting public health end safety which not reasonably obtainable from another

• The schedule is designed for realistic are not raised by the litigating parties.

compliance with the 3 year deadline set source. NCAI and Nevada both assert that this for the NRC in section 114 of the NWPA. amendment suggests that the The Commission has decided to However, if at a later time in the HLW reorganize the proposed provisions Commission is elevating considerations licensing proceeding it appears relating to subpoenas. The proposed of an efficient schedule over health and desirable or necessary to amend the change to § 2,720(a) will not be adopted safety issues or scientific validity in the schedule to accommodate a particular because the current language already proceeding. plan for the proceeding, the Commission The Commission does not agree that contains a requirement of general could then consider amending the the new rule takes away anything. The relevance. The proposed addition of schedule. § 2.720(h)(2)(v) will not be adopted and current regulations in 10 CFR part 2, Several small editorial changes to the subpart J, do not provide for SUD sponte instead, the same purpose will be schedule and related rules have been review by the Presiding Officer. The accomplished by the adoption of a made to the proposed versions. The new provision merely clarifies that it is revision to § 2.1019(j) adding the amendment to § 2.1022 has been limited the Commission's specific intention not language "and that the testimony sought to changing the timing of the second pre* to grant this authority to the Presiding Is not reasonably obtainable from hearing conference to not later than Officer in this proceeding. another source by any party" lo the lest thirty days after the Safety Evaluation The only existing provision which sentence. Report. Paragraph (e)(l) of§ 2.10:!2, exp!ic.itly allows SUD sponte review for 8. Conforming Amendments which was deleted in the proposed rule, specified matters, § 2.760a, applies only has been restored. Although subject to to initial decisions in contested The amended rule requires several the stricter standards in § 2.1014(a)(4), proceedings for an operating license for conforming amendments. Section 2.1000 emended contentions, if any are a production or utilization facility. This has been revised to delete references to submitted, are.an appropriate topic for provision was never incorporated by § § 2.749 and 2.785. The amended rule consideration at the second prehearing reference in subpart J and does not, by adds a new § 2.1025 on summary conference. its terms, apply to the repository disposition for the HLW proceeding. Also, in appendix D, the description of licensing proceeding. Therefore, *new . Therefore, the reference to the summary several milestones concerning "final disposition provision in subpart G, motions for summary disposition" have § 2.749 no longer needs to be cross been amended because they were based the* Th~ propoeed version ol lhie rule also applied lo Appeal Board. however, the Commiseion hae referenced in § 2.1000. Also, es upon a prior version of§ 2.1025. Section subsequently decided lo abolieh the Atomic Safety discussed in footnote 2, the Commission Z.1025 has been amended to allow and l.icensins Appeal Board Panel. Appeals to hes decided to abolish the Atomic motio11s for summary disposition to be initial decisions wilt now be heard by the Safety end Licensing Appeal Panel. The filed et any time, therefore, the Commie1ion. See Propoeed Rulemakins Notice, Options and Procedure* for Direct Commias!on Commission itself,will not review initial milestones formerly set at days 660, 680, Re.lew or Llcenalns Board Decision, (55 FR 42947; decisions. Therefore, the cross-reference 700, 710, and 750 have been amP.nded to Octobar 24. 1990). in § 2.1000 to § 2.785, (entitled Function!! 2-SC-77

PART 2

• STATEMENTS OF CONSIDERATION of the Atomic Safety and Licensing set in the LSS Administrator's "Presiding Officer" have been added to Appe*,l Board) has been deleted. All Compliance Evaluation Strategy to be § 2.1001, Minor conforming emondments references to the Appeal Board submitted to the Commission in 1991. have been added to correct old 0

lsewhere in this subpart have buen Modlfications to § 2.1010 clarify that references to the "Pre-Llcense revised to refer to the Commission. Revised § 2.4 clarifies that for the Commission may designate one or more members of the Commission or an to Application Board" refer to the "Pre* License Application Presiding Officer" purposes of § 2.1018, "NRC Personnel" atomic safety and licensing board ore and to eubetltute "Presiding Officer" for includes NRC consultants. named officer to serve as the Pre- "Board" or "Hearing Licensing Board." Paragraph (b)(l) of I 2.1008 has been License Application Presiding Officer A These terms have been inserted revised to include reference to two new new § 2.1010(£) clarifies that the throughout subpart J for consistency paragraphs that have been added as Commission will specify the jurisdiction only and do not constitute any criteria for considering petitions to

• of the Pre-License Application Presiding substantive change.

intervene. § § 2.1014(c) (4) and (5). Officer In designating the Officer. Both FPL and EEI/UW ASTE oppose 1o. Notice of Hearing

9. Clarifications to LSS Regulations the amendment allowing the

• 1n addition to the procedures set forth The amended nile contains a appointment of a Pre-License for the HLW licensing proceeding in modification to § 2.1003(h) to clarify that Application PresicUng Officer end lavor.. subpart J, the Commission also proposed both the periodic evaluations of, and the . retaining the use of a three member several Issues related to the written report on. DOE's compliance
• with the LSS requirements pursuant to licensing board during the pre-license application phase. BEI/UWASTE favors of management the hearing that would be 1et forth In the Commission's Notice

 § § 2.1003(h)(2) (i) and (ii) will be         this approach in the hope that members       of Hearing for the HLW proceeding. The circulated to the potential parties for        of the Pre-License Application Licensing     Commission has propoeed the following comments due within 30 daye of the             Board might have the benefit of early         issues that It plans to include in the issuance of the evaluation or report.         exposure to the HLW licensing issues          Notice of Hearing:

DOE does not'agree the Interpretation end that at least some of these members (1) The Commission itself will of the Commission that the evaluation might eventually serve on the required by I 2.1003(h)(2)(i) and.the designate the Presiding Officer. If the adjudicatory board (Presiding Officer}. Presiding Officer Is a Hearing Ucensing written report of the evaluation required The Commission did not Intend to by § 2.1003(h)(2)(ii) are two separate Board, the Commission will designate limit its options when It adopted the members. This Hearing Licensing written documents. As a participant in § .2.1010. Although the Commission may the Negotiating Committee, DOE Board will have plenary authority and actually decide to use a three member management responsibility for the HLW understood that the first section requires licensing board during the pre-license that an evaluation be performed and the hearing, including the authority to application phase of the HLW licensing discipline pa11ies, to rule on procedural second section specifies the method of proceeding, the Commission wishes to recording the evnlua*tion, a written motions on issuee before it, and to rule maintain the eame options It would have -on party status and contentions. The report. DOE does agree that potential in other NRC proceedings. The range of parties should be required to submit Hearing Licensing Board may establish options that the Commission la such other subsidiary boards ae are comments or objections to the specif}'ins in this pre-license application evaluation report within 30 days of the necessary to hear and decide discrete phase of the proceeding is similar to that issues identified by the Hearing issuance of the report or the comments in I 2,704, which Is applicable in other . or objections are waived. Licensing Board for separate disposition. NRC proceedings and to this licensing The Commission disagrees with proceeding as well, by specific reference (2) The Commission will select the DOE's interpretation. The evaluations in subpart J, I 2.1000. technical members of the Hearing required by I 2.100S(h)(2)(i) are FPL suggests adding a new I 2.1010(£) Licensing Board from a wide pool of scheduled every six months, beginning 6 which would specify that the external and internal candidates, months after the appointment of the LSS jurisdiction of the Pre-License including members of the Commission's Administrator. There is only one written Application Board would not extend to Licensing Board Panel. This will ensure report required in § 2.1003(h)(2)(ii). any suustantive issue in the application the greatest potential for Identifying Pursuant to § Z.1003{h){l), this report to build all or part of a repository. candidates with the requisite expertise. must show DOE's substantial The Commission responds that The Commission anticipates a three compliance with the i 2.1003 § 2.lOlO(f) has been added to clarify that member Hearing Licensing Board requirements and is due at least 6 the Commission will specify the consisting of a lawyer-chairman who Is months prior to the submission of the jurisdiction of the Pre-Ucense experienced with NRC procedures, end license application. In practice, one of Application Presiding Officer at the two technical members, one with the evaluations prepared pursuant to same time that it designates the Officer. engineering exp!lrtiae, and one with

 § 2.1003(h)(2)(i) could serve es the              In the notice of proposed rulemakln!!,    geoscience expertise, end both with a written report required by§ 2.1003(h)(ii)      two clauses were inadvertently omitted       background In performance assessment.

if all the required information were from the text of amended I Z.1010(a)(1) (3) The Commission will encourage included. However, the revision clurifies which are in this paragraph as it the Presiding Officer to set time limits that both the periodic evaluations and currently reads. These clauses relating on cross-examination if necessary to the written report will be written tp the authority of the Pre-License meet the hearing schedule. documents and will be circulated to Application Presiding Officer to resolve (4) The Commission will direct the potential parties. Theee potential partiee "disputes relating to relevance and Presiding Officer to Institute the "lead may submit comments or objections to privilege:" and "disputes relating to intervener" concept for the proceeding. either the periodic evaluations or the access to the Ucensing Support (5) The Commission will direct the report within 30 days of issuance or else System;" have been restored. Presiding Officer to limit the scope of re-waive the right to comment or object. In addition. for clarity and direct the re-cross examination to the The echedule for initiating the consistency, definitions of "Pre-License issues raised on cross-examination and 1;ompliance evaluation process will be Application Presiding Officer" and re-direct examination, respectively. 2-SC-78

PART 2

• STATEMENTS OF CONSIDERATION *

[6) The Commission will encourage Paperwork Reduction Act Statement this final rule, because these the Presidir..g Officer and parties to amendments do not involve any This final rule does not contain a new provisions which would impose backfits reach agreement on the order of hearing or amended information collection Issues so that related issues can be as defined in 10 CFR 50.109(a)(1). requirement subject io the Paperwork addressed at the same time, and to the Llst of Subjects in 10 CFR Part 2 Reduction Act of 1980 (44 U.S.C. 3501 et P.Xtent practicable, in a logical sequence. (7) The Commission will instruct the seq.). Existing requirements were Administrative practice and NRc* staff to refrain from becoming approved by the Office of Management procedure. Antitrust, Byproduct invo1ved in procedural disputes between and Budget approval number 3150-0136. material, Classified information, other parties in which the staff does not Environmental protection, Nuclear Regulatory Analysis materials, Nucl1iar power plants and have an interest, unless the Presiding Officer specifically requests the stafrs The Commission has prepared a reactors, Penalty, Sex discrimination, views on the matter. regulatory analysis on this final Source materiul, Special nuclear (BJ The Commission will clearly define regulation. The analysis examines the material, Waste treatment and disposal. the precise scope of the hearing, outline costs and benefits of tlie alternatives For the reasons set out in the the appropriate general issue areas to be considered by the Commission. No rreamble and under the authority of the considered in the proceeding and define comments were received on .the draft Atomic Energy Act of 1954, as amended, the bournlaries of the Presiding Officer's regulatory analysis. The* analysis is the Energy Reorganization Act of 1974, jurisdiction in the Notice of Hearing. available for inspection in the NRC as amended, and 5 U.S.C. 552 and 553, With reference to the selection of the Public Document Room, 2120 L Street, the Nuclear Regulatory Commission is technical members of the Hearing NW. (Lower Level), Washington, DC. adopting the following amendments to Licensing Board, DOE suggests that at 10 CFR part 2,. Single copies of the analysis may be least one of the technical members *obtained from Kathryn L. Winsberg, U.S. ought to have some experience in the Nuclear Regulatory Commission, ~6FR10359 NRC licensing process, and also that it Published 3/12/91 Washington, DC 20555. Telephone: (301) might unnecessarily limit the pool of Effective 3/12/91 492-1637. available candidates to require that both technical members have a background Regulatory Flexibility Certification 10CFR Part 2 In perfonnance assessment. Nevada opposes the setting of time This final rule will not have a RIN 315il-AD84 limits on cross examination. The significant economic impact upon a substantial number of small entities. The. Assistance to Prospective Pf.titioners commenter believes that sufficient authority currently exists in the amendments modify the Commission's AGENCY: Nuck~ar Regulatory licensing boards to control cross rules of practice and procedures. The Commission. examination when necessary. license applicant for the HLW repository ACTION: Final rule. Nevada strongly opposes the "lead will be the Department of Energy,.which intervenor" concept and urges the would not fall within the definition of

SUMMARY

l'he Nuclear Regulatory Commission not to include this small businesses found in section 34 of Commission (NRC) is amending its procedure in the Notice of Hearing. The the Small Business Act, 15 U.S.C. 632, in regulations concerning its procedures for commenter believes that Nevada's right the Small Business Size Standards set filing a petition for rulemaking with the to participate is clearly recognized and out in regula lions issued by the Small NRC. The final rule is necessary to

. should not be subordinated in any way Business Administration at 13 CFR port clarify the type of assistance that muy to a "lead intervenor." 121, or in the NRC's size standards be provided to a prospective petitioner. EEI/UWASTE does not agree that Lhe published December 9, 1985 (50 FR EFFECTIVE DATE: March 12, 1991. staff should be instructed to refrain from 50241). Although a few of the Involvement in procedural disputes FOR FURTHER INFORMATION CONTACT: intervenors in the HLW proceeding are Donnie H. Grimsley, Director, Division between the parties. The commenter likely to fall within the pertinent Small asserts that procedural disputes might of Freedom of Information and Business Act definition, the impact on Publications Services, Office of affect the timing, scope, or outcome of the hearing, or establish precedent with intervenors or potential intervenors will Administration, U.S. Nuclear Regulatory broad impact. Although in a narrow not be significant. While intervenors or Commission, Washington, DC 20555, sense, the staff is not directly affected, potential intervenors will have to meet a telephone (301) 492-7211, the commenter feels that the views of higher threshold to gain admissio?l to SUPPLEMENTARY INFORMATION: The the staff should be brought to the NRC proceedings and thereby incur. Administrative Procedure Act (5 U.S.C. Hearing Licensing Board's attention some additional costs in preparing for, 553(e)) requires that each agenc1* give an

*without the requirement of a specific          and participating in, the proceeding,         interested person the right to petition tequest.                                       these costs will be minimized by the           the agency to issue, amend, er repeal a The Commission will consider the           early availability of information through      rule. Nuclear Regulatory Comr.iis:iion comments that have been submitted in           the LSS and the pre-license application        (NRC) regulations, stated in 10 CFR the future in formulating the Notice of        consultation process. Thus, in                 2.802, implement this provision.

Hearing .. accordance with the Regulatory Paragraph (b) of§ 2.802 establishes Flexibility Act, 5 U.S.C. 605(b), the NRC . procedures by which a member of the . Environmental Impact: Categorical hereby certifies that this final rule will

• Exclusion public msy contact the NRC before filing not have a significant economic impact n petition for rulemaking with the The NRC has determined tl1at this upon a substantial number of small agency. The NRC.believes that this type final rule is the type of action described .entities. of contact may be helpful in deac,*ibing in calegorical exclusion 10 CFR Bnckfit Analysis the procedure and process for filing and 51.22[c)(1). Therefore neither an rEsponding to a petition for rulemaking, environmental impact statement nor an The NRC has determined that the clarifying an existing NRC regulation environmental assessmeni'has been backfit rule, 10 CFR 50,109, does not and the basis for that regulation, end prepared for this final rule. . apply to this final rule, and therefore, assie ting the prospective petitioner to

                                                ~hat a backfit analysis is not required for    clarify a potential petition so that the 2-SC-79

PART2 STATEMENTS OF CONSIDERATION Commission is able to understand the Receipt of High-Level Radioactive nature of the issues of concern to the Waste at a Geologic Repository petitioner. These amendments to 10 CFR 2.802 arc necessary to clarify the type of Correction assistance that may be provided to a In rule document 91-4483, beginning prospective petitioner. on page 7787 In the Issue of Tuesday, Because these amendl!lents deal .February 26, i991, make the following solely with agency pr1:1clice and correction: procedure, the notice and comment provisions of the Administrative Appendix D to Part 2 [Corrected) Procedure Act do-not apply pursuant to 5 U.S.C. 55a(b)(A). The amendmcr.ts are On page 7798, in the table, In the third effr.ctive upon publication in the Federal column, in the fourth line from the Register. Good cause exists to dispense bottom "Appeals" was misspelled. with the usuai 30-day delay in the '56FR23360 effective date because the amendments Published 5/21 /91. are of 8 minor and administrative nature Effective 6/20/91 dealing with a matter of agency conduct, the type of assistance that may be Standards for Protection Against provided to a prospective petitioner. Radiation Environmental Impact: Categorical See Part 20 Statemen18 of Consideration

 ~xclusion The NRC has determined that this          56 FR29403 final rule is the type of action described    Published 6/27/91.

in categorical exclusion 10 CPR Effective 7/29/91. 51.22(cl{1). Therefore neither an environmental impact statement nor an Procedures for Direct Commission Review of Decisions of Presiding environmental assessment has been Officers prepared for this final rule. Paperwork Reduction Act Statement See Part O Statements of Consideration This final rule contains no information collection requirements and therefore is *s&FR32066 not subject to the requirements of the Published 7/15/91 Paperwork Reduction Act of 1980 (44 Effective 8/14/91 U.S.C. 3501 et seq.). Operators' Licenses Backnt Analysis See Part 55 Statements of Consideration The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this final rule, and therefore, 56 FR 34104 that a backfit analysis is not required for this final rule, because these Published 7/25/91 amendments dc.f not involve any Effective 1/27/92 provisions which would impose backfits Quality Managemmt Program as defined in 10 CFR 50.109(a)(1). and Misadministrations List of Subjects in 10 CFR Part 2 See Part 35 Stateoents of Administrative practice and procedure, Antitrust, Byproduct *Consideration material. Classified* informa lion, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalties, Sex discrimination, Source material, Special nuclear material. Waste treatment and dispose!. For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR part 2. 156 FR 14151 Published 4/5/91 10 CFR Part 2 RIN 3150-AD27 Procedures Applicable to Proceedings for the Issuance of Licenses tor the 2-SC-80

PART 2

• STATEMENTS OF CONSIDERATION North, 11555 Rockville Pike, Rockville, concerning maintenance in Supplement I Maryland 20852, between 7:30 am and fits more appropriately in the overall 4:15 pm, weekdays. Copies of comments structure of the Enforcement Policy and received may be examined at the NRC will provide the appropriate flexibility Public Document Room, 2120 L Street to deal with the various maintenance NW., Lower Level, Washington, DC. issues. Significant deficiencies in the perfonnance of maintenance activities FOR FURTHER INFORMATION CONTACT:

James Llebennan, Director, Office of that impact plant equipment where a Enforcement, U.S. Nuclear Regulatory violation is involved may be considered Commission, Washington, DC 20555, a significant regulatory concern. The Telephone (301) 492-0741*, added example provides notice consistent with the final rule that SUPPLEMENTARY INFORMATION: On appropriate maintenance is expected to March 23, 1988, the Commission issued a *be conducted for both safety-related and Policy Statement on Maintenance of applicable balance of plant systems. Nuclear Power Plants (53 FR 9430) which stated the Commission's List of Subjects la 10 CFR Part Z expectations in the area of maintenance and the intention to proceed with a Administrative practice and rulemaking on maintenance. procedure, Antitrust, Byproduct

                                          'Subsequently, on November 28, 1988, tha    material, Classified information. Civil Commission published a Notice of           penalty, Enforcement, Environmental Proposed Rulemaking (53 FR 47822)          protection. Nuclear materials, Nuclear directed toward improving the              power plants and reactors. Penalty, Sex effectiveness of maintenance programs. discrimination, Souroe material, Special Based on additional infonnation            nuclear material, Violations, and Waste received after publication of the Policy    treatment and disposal.

Statement and the Notice of-Proposed Rulemaking, the Commission decided to hold rulemaking in abeyance for a 56 FR36998 period of 18 months from the effective Published 8/2/91 date of the Revised Policy Statement on Effective 8/2/91 Mainte:iance of Nuclear Power Plants which was published December 8, 1989 (54 FR 50611).

• In the Revised Policy Statement on the 10CFR Part2 Maintenance of Nuclear Power Plants, the Commission stated its intent in Polley and Procedure tor Enforcement enforcing requirements for power Actions; Polley Statement reactors to emphasize maintenance.

Consistent with that position, the AGENCY: Nuclear Regulatllry Enforcement Policy was revised to Commission. provide such emphasis by adding ACTION: Policy Statement Modificetion. maintenance failures as an escalating factor in assessing civil penalties where

SUMMARY

The NRC is publishing a it has been concluded that the violation modification to its Enforcement Policy to invoh*es a significant regulatory add an additional example to the concern. 54 FR 50611 (December 8, 1989).

Reactor Operations SupplemPnt The Commission promulgated the involving maintenance related final maintenance rule, Monitoring the violations and to delete the civil penalty Effectiveness of Maintenance at Nuclear adjustment factor for violations Power Plants on July 10, 19e1 (56 FR involving maintenance deficiencies. This 31306) and Js now deleting the policy is codified as appendix C to 10 maintenance escalation factor and CFRpart2. replacing it with a specific example of a DATES: Since this action concerns a Severity Level ill violation involving general statement of policy, no prior maintenance activities in Supplement I notice is required and, hence, this of the Enforcement Policy. This change modification of the Enforcement Policy will continue to emphasize the is effective August 2, 1991. Comments Commission's intent to enforce existing submitted by September 3, 1991 will be requirements while at the same time considered. nonnalize treatment of maintenance in ADDRESSES: Send comments to: the enforcement process. Previously, Secretary, U.S. Nuclear Regulatory maintenance as a root cause was the Commiosion, Washington, DC 20555, only functional area with a separate AITN: Docketing and Sen.ice Branch. escalation factor. The Commission has Deliver comments to One White Flint concluded that placing an example 2-SC-81

PART 2

• STATEMENTS OF CONSIDERATION 56FR40664 Published 8/15/91

5. Method of Implementation. unlicensed person who violated Effective 9/16/91 III. The New Regulations. provisions of 10 CFR part 21, which A. Revisions to Procedures to Issue Orders. implements section 206 of the Energy B. Deliberate Misconduct by Unlicensed 10 CFR Parts 2, 30, 40, 50, 60, 61, 70, Persons. Reorganization Act of 1974.

72, 110,and 150 IV. Enforcement Policy. Consequently, the Commission amended V. Procedural Actions. its regulations to permit the issuance of RIN 3150-AD53 and 3150-AD38 VI. Final Rules. notices of violation to unlicensed Revisions to Procedures to Issue I. Background persons who violated Commission Orders; Deliberate Misconduct by requirements. Changes were published On April 3, 1990, the Nuclear in the Federal Register on September 28, Unlicensed Persons Regulatory Commission published in the 1983 (48 FR 44170) to amend § 2.200 AGENCY: Nuclear Regulatory Federal Register (55 FR 12370) proposed * (Scope of subpart) and § 2.201 (Notice of Commission. revisions to procedures to issue orders violation) to add the phrase "or other ACTION: Final rule. and (55 FR 12374) a proposed rule person subject to the jurisdiction of the concerning willful misconduct by Commission."

SUMMARY

The Nuclear Regulatory unlicensed persons. The proposed As stated above, the provisions for Commission (NRC) is amending its revisions to procedures for issuing issuing show cause orders only address regulations to (1) revise its procedures orders would include persons not licensees. As discussed in the statement for issuing orders to include persons not licensed by the Commission but who are of considerations accompanying the licensed by the Commission but who are otherwise subject to the Commission's proposed rule, the Commission, in otherwise subjeot to the Commission's jurisdiction. The proposed revisions practice, has fashioned orders to non-jurisdiction, (2) identify the types of would also identify the types of licensees where necessary to compel a Commission orders to which hearing Commission orders to which hearing person to cease unauthorized activities rights attach, and (3) put licensed and rights attach. The proposed rule on willful misconduct would put unlicensed that would require a license or to unlicensed persons on notice that they compel actions by a former licensee may be subject to enforcement action persons on notice that they may be subject to enforcement action (1) for with respect to its activities previously for deliberate misconduct that causes, or under license. See e.g., Michael F.

but for detection, would have caused a willfully causing a licensee to violate any of the Commission's requirements Dimun, 54 FR '.l2704 (March 28, 1989); licensee to be in violation of any of the Pacific Armatechnica Corp., 48 FR 38356 Commission's requirements, or for or (2) for other willful misconduct that (a) arises out of activities within the (Aug. 23, 1983). The Commission's deliberately providing, to the NRC, a statutory authority to issue orders, licensee, or contractor, information jurisdiction of the NRC and (b) places in question the NRC's reasonable which is found in section 161 of the which is incomplete or inaccurate in Atomic Energy Act of 1954, as amended, some respect material to the NRC. These assurance that licensed activities will be conducted in a manner that provides 42 U.S.C. 2201, is not limited solely to rules will establish procedures to be licensees. In fact, the Commission's used in issuing orders to licensed and adequate protection to the public health and safety. The Commission is Atomic Energy Act authority to issue unlicensed persons to provide orders is extremely broad, extending to reasonable assurance that licensed promulgating the two proposed actions, as modified, in this single final rule. any person (definedfo section lls to activities will be conducted in a manner include, e.g., any individual, corporation, that will protect the public health and A. Revisions to Procedures to Issue federal, state and local agency) who safety. In addition, the Commission is Orders engages in conduct within the revising its Enforcement Policy to reflect Commission's subject matter the new rules. The procedures to be followed by the Commission to initiate formal jurisdiction. The few court cases which EFFECTIVE DATE: September 16, 1991. deal with the scope of the general enforcement action are found in the FOR FURTHER INFORMATION CONTACT: Commission's Rules of Practice set forth authority Congress has granted the James Lieberman, Office of in 10 CFR part 2, subpart B. These . Commission usually do so in a general Enforcement, U.S. Nuclear Regulatory actions currently include notices of discussion or in passing and conclude Commission, Washington, DC 20555, violation, described in § 2.201, show that section 161 confers uniquely broad telephone: (301) 492-0741; Mary E. cause orders, described in § 2.202, and flexible authority on the Wagner, Office of the General Counsel, orders to modify licenses, described in Commission. See Power Reactor Dev. U.S. Nuclear Regulatory Commission, § 2.204, and civil penalties, described in Co. v. International Union of Elec. Radio Washington, DC 20555, telephone: (301) § 2.205. and Mach. Workers AFL-CIO, 367 U.S. 492-1683. Until 1983, with the exception of the 396 (1961); Connecticut Light and Power SUPPLEMENTARY INFORMATION: civil penalty procedures in § 2.205, the Co. v. Nuclear Regulatory Comm 'n, 673 I. Background. language in these procedures referred F.2d 525, 527, n. 3 (D.C. Cir: 1982); New A. Revisions to Procedures to Issue Orders. solely to licensees. At that time, it was Hampshire v. Atomic Energy Comm'n, B. Deliberate Misconduct by Unlicensed Persons. recognized that the Commission's 406 F.2d 170, 173-74 (1st Cir. 1969); II. Analysis of Public Comments. regulations did not provide a procedural Siegelv. Atomic Energy Comm'n, 400 A. Legal Issues. mechanism to issue a formal notice of F.2d 779, 783 (D.C. Cir. 1968); but cf.

1. NRC Jurisdiction Over Unlicensed violation to an unlicensed person Reynolds v. United States, 286 F.2d 433 Persons. (corporate or individual) who had (9th Cir. 1960) (interpreting section 161i

2. Privacy Act Considerations. violated Commission requirements. For in detail and holding, in the context of

3. Other Comments Based on Legal example, by referring only to licensees, the AEC's bomb testing activities, that Concerns.. the procedures in § 2.201 did not section 161i(3) authorized the AEC to B. Policy Issues. address issuing a notice of violation to a take action to govern the activities of

1. Need for the Rules.

2. Effect on Employment Relationships. person who possessed radioactive private licensees and not the activities

3. Effect on Public and Private Expression. material without a license in violation of of the Commission itself: the court's use

4. Better Ways to Address the Problem. Commission requirements or to an of the word "licensee" is dictum with 2-SC-82

PART 2

• STATEMENTS OF CONSIDERATION regard to the term in the context of this amend 10 CFR 2.202 to have the prior conduct. Willful acts of licensees' notice). procedural mechanism in place to issue contractors, vendors, or their employees Cases analyzing the Federal orders, as necessar:11, to unlicensed have caused licensees to be in violation Communications Commission's (FCC) persons when those persons have of Commission requirements. Therefore, enabling statute, which, in many ways, demonstrated that future control over the Commission believes that additional is analogous to the 1954 Act, also their activities subject to the NRC's enforcement options are needed to support the principle that the jurisdiction is considered necessary to address directly persons who are not
• commission's authority is wide in scope. protect public health and safety or to themselves licensees, but are or have The Federal Communications Act of minimize danger to life or property or to been engaged in licensed activities and 1934 (the 1934 Act) broadly authorizes protect the common defense and whose deliberate misconduct, directly or the FCC to "make such rules and security. In addition, the procedural indirectly, causes a licensee to be in regulations, and issue such orders, not mechanism for issuing Demands for violation of a Commission requirement.

inconsistent with (the 1934 Act), as may Information to licensees and other "Licensed activities," as used in this be necessary in the execution of its persons is set forth in a separate section rule, includes those actions that enable functions", 47 U.S.C. 154i (1982). This in order to clarify that the right to a a licensee to carry out its license. 1 provision is similar to section 161i(3) of hearing does not attach at the time of Although the Commission's concerns the Atomic Energy Act of 1954, which issuance of a simple Demand for extend to all willful misconduct and the authorizes the Commission to "prescribe Information. proposed rule applied to that conduct, such rules, regulations, and orders as it B. Deliberate Misconduct by Unlicensed as discussed in Part III, infra, the final may deem necessary to govern any Persons rule adopted here addresses only activity authorized pursuant to the deliberate misconduct. (Atomic Energy Act of 1954) * *

• in Over the years, the Commission has, Accordingly, the Commission is order to protect health and to minimize in most cases, issued licenses to amending its regulations to put on notice danger to life or property * * *." 42 organizations rather than individuals. all persons whose actions relate to a U.S.C. 2201(il(3) (1982). A number of Likewise, the Commission's enforcement licensee's activities subject to NRC cases have analyzed section 154i in program holds the licensees responsible regulation, that they may be subject to detail and determined that the FCC's not only for the conduct of operations, enforcement action for deliberate but also for the conduct of their misconduct that"* *
• causes or, but ordering authority is necessarily broad.

employees, consultants, or contractors. for detection, would have caused, a See Federal Communications Comm 'n v. Until now, enforcement actions licensee to be in violation of any rule, National Citizens Committee for concerning persons who have willfully regulation, or order, or any term, Broadcasting, 436 U.S. 775 at 793 (1978); caused violations of Commission United States v. Storer Broadcasting condition, or limitation of any license, requirements or otherwise have engaged Co., 351 U.S. 192 at 203 (1955); National issued by the Commission* * *." The in willful misconduct in connection with Broadcasting Co. v. United States, 319 amendment also puts those same licensed activities consisted of actions U.S. 190 at 196 (1943); Lincoln Telephone against licensees, including Notices of persons on notice of their individual and Telegraph Co. v. Federal Violations, civil penalties, and orders liability for deliberate submission of Communications Comm '.n, 659 F.2d 1092 modifying the license to direct removal incomplete or inaccurate information to (D.C. Cir. 1981); American Telephone of the individual from licensed activities the NRC, a licensee, contractor, or and Telegraph v. Federal at the licensed facility where the subcontractor. These changes make any Communications Comm'n, 487 F.2d 865 violation occurred, or orders confirming person who violates these requirements (2d Cir. 1973); GTE Service Corp. v. that the licensee has removed an subject to the enforcement actions Federal Communications Comm'n, 474 individual from licensed activities. described in 10 CFR part 2, subpart B. F.2d 724 (2d Cir. 1973); and Western These actions frequently only indirectly That subpart provides for issuance of Union Telegraph Co. v. United States, reach an individual. Notices of Violation, civil penalties, and 267 F.2d 715, 722 (2d Cir. 1959). It has Instances of willful misconduct on the orders. been held that the FCC has authority to part of unlicensed individuals have These changes will allow the issue orders under section 154i of the reduced the NRC's confidence that if Commission to utilize the full range of Federal Communications Act to persons these individuals were involved enforcement sanctions, where whether licensed or not. United States v. subsequently in licensed activities the warranted, against any person who Southwestern Cable, 392 U.S. 157, 180- activities would be conducted in a engages in deliberate misconduct, or 81 (1968). manner that adequately protects public deliberately submits incomplete or Section 161i provides broad authority health and safety. This conduct has inaccurate information, as provided in to issue orders as the Commission included deliberate violations of NRC the rule. This includes licensees, deems necessary to govern any activity requirements, falsification of records, licensee employees, contractors, authorized pursuant to the Atomic false statements to the NRC, and Energy Act in order to protect the public interfering with NRC investigations, as 1 Licensed activity as used in this context is a health and safety. Section 161b similarly well as other forms of wrongdoing. After broad term, coextensive with the Commission's authorizes the Commission to issue jurisdiction, that encompasses all of those activities becoming aware of such conduct by an that a licensee, employees of a licensee, or a orders to establish standards and employee, a licensee may dismiss the licensee's contr8.ctors, subcontractors, and instructions to govern the possession employee either by its own decision or employees of contractors or subcontractors, perform and use of special nuclear material, because the NRC formally orders to permit the licensee to carry out activities licensed source material, and byproduct material. by the Commission in accordance with Commission removal of the employee from licensed requirements, whether performed on or off site. As relevant here, section 1610 activity. However, the wrongdoer may Licensed activities do not include actions of states authorizes the Commission to order seek other employment in the same field and local governments, such as issuing permits or reports as may be necessary to at another NRC or Agreement State- participating in emergency response activities, that effectuate the purposes of the Act. licensed facility, often without the enable a licensee to conduct licensed activities. However, licensed activities do include actions by* Given the Commission's extensive knowledge of the NRC or knowledge by state and local governments to the extent they are statutory authority, it is appropriate to the new employer of the employee's operating as NRC licensees. 2-SC-83

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• STATEMENTS OF CONSIDERATION subcontractors, and employees of requirements. Section 234 reads as addressing willful misconduct by contractors or subcontractors. Although follows: individuals, they disagreed with the certain deliberate misconduct may not a. Any person who ~) violates any proposed approach. Sixteen of the cause a violation of a Commission licensing provision of section 53, 57, 62, 63, 81, commenters were utilities with nuclear requirement due to detection before the 82, 101, 103, 104, 107, or 109 or any rule, power plants or their representatives violation actually occurs, consideration regulation, or order issued thereunder, or any and another six were vendors or 9f a sanction is appropriate in these term, condition, or limitation of any license manufacturers. Three materials issued thereunder, or (2) commits any licensees commented. Seven private cases, as the intent to engage in violation for which a license may be revoked misconduct was present and improper under section 186 [of the 1954 Act], shall be citizens, three public interest groups, action initiated. Similarly, individual subject to a civil penalty, to be imposed by and three professional or trade enforcement action is appropriate for the Commission, of not to exceed $100,000 for organizations submitted comments.

deliberately providing materially each such violation * * *. Copies of the comments may be incomplete or inaccurate information The licensing provisions listed in examined and for a fee copied at the that might affect NRC decisions section 234a generally prohibit the NRC Public Document Room, 2120 L concerning protection of the public possession, use, receipt, or transfer of Street NW. (Lower Level), Washington, health and safety. The Commission nuclear materials or facilities unless DC. A summary of comments with the emphasizes that, by taking action authorized by and in accordance with a Commission's responses appears below. against these persons, it does not intend license. The changes are made under the A. Legal Issues to diminish the responsibility of a authority of 161 b and i and the above-licensee for the conduct of its employees identified licensing provisions. The 1. NRC Jurisdiction Over Unlicensed and therefore, as*appropriate, the changes apply to any person who Persons Commission also will be taking action engages in deliberate misconduct, or against the licensee directly. deliberately submits incomplete or Comment: Several commenters felt inaccurate information, as provided in that there is no statutory basis in the This rulemaking concerning deliberate Atomic Energy Act of 1954 (the 1954 misconduct implements the the rule. By imposing a direct prohibition on unlicensed persons, the Commission Act) to support the issuance of orders to Commission's authority under the unlicensed persons. Atomic Energy Act of 1954, as amended, may now be able to exercise its section to issue regulations and orders to any 234 authority to impose civil penalties Response: In enacting section 161 of person (defined in section 11s to include, on unlicensed persons who deliberately the 1954 Act, Congress conferred cause a licensee to be in violation of uniquely broad and flexible authority on e.g., an individual, corporation, firm or a requirements because they are persons the Commission. Specifically, Congress Federal, State or local agency) who authorized the Commission in section engages in conduct affecting activities who violate the licensing provisions enumerated in section 234. In cases 161 to "prescribe such * *

• regulations within the Commission's subject-matt!!r * *
• as it may deem necessary to jurisdiction. As discussed above, the where the Commission issues an order (other than an order imposing a civil govern any activity authorized pursuant few court cases that deal with the scope to [the 1954 Act], in order to protect of the general authority Congress has penalty) to a person based on deliberate misconduct that causes a licensee to be health and minimize danger to life and granted the Commission usually treat property." From the absence of specific the issue in the general discussion or in in violation of a Commission requirement, the order would be issued, provisions setting forth the limits of the passing, concluding that section 161 NRC's personal jurisdiction, it is clear confers uniquely broad and flexible in part, pursuant to a regulation (e.g.,

proposed § 50.5) that was promulgated that the 1954 Act authorizes the authority on the Commission. As Commission to promulgate its personal discussed above, cases analyzing the under a licensing provision of the Atomic Energy Act, and a civil penalty jurisdiction regulations within its Federal Communications Commission's discretion in order to effect the purposes (FCC) enabling statute also support the could be available for violations of such an order. In addition, criminal sanctions of the Act. principle that the Commission's Section 161b authorizes the authority is wide in scope. under section 223 are available for willful violations of orders and Commission to exercise very broad Section 161i provides broad authority regulations under sections 161 b and i. powers to protect the public health and to issue regulations as the Commission Injunctions are also available under safety from radiological hazards. The deems necessary to govern any activity section 232 for violations of Commission section authorizes the Commission to authorized pursuant to the Atomic orders. impose orders on entities that engage in Energy Act in order to protect the public particular activities-without regard to health and safety. Section 161b similarly n. Analysis of Public Comments the nature of the entities, as the authorizes the Commission to issue In response to the April 3, 1990 Commission deems necessary or regulations to impose "standards and proposed rule(s), the Commission desirable. When an entity takes part in instructions" on persons to govern- the received comments from thirty-eight activities specified in section 161b, then possession and use of special nuclear organizations or individuals. Of these, section 161b authorizes the NRC to material, source material, and byproduct only two indicated support for either of regulate that entity; whether an material, as may be necessary or the rules as a whole, although some individual holds an NRC license or not desirable to provide for the common commenters indicated partial support to is irrelevant to this inquiry. Similarly, defense and security and protect the the extent that the rules would provide section 161i authorizes the Commission public health and safety. some protection to licensees from to issue orders in its discretion ("as it Section 234 of the Atomic Energy Act vendors and individuals who violate may deem necessary") to exercise authorizes the NRC to impose civil regulations and those who provide false regulatory power over ("to govern") penalties on unlicensed individuals, information to licensees who then give activities "authorized pursuant to this including those who conduct licensed the information to the Commission. Act", and does not specify entities (e.g., activities as employees of licensees, for While several commenters expressed licensed or unlicensed) over which such violation of the NRC's substantive support for the Commission's goal of power may be exercised. Section 1610 2-SC-84

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• STATEMENTS OF CONSIDERATION authorizes the Commission to require by Supplementary Information discussion misdemeanor. While the Commission order such reports "as may be necessary points out, the issue in Reynolds was argued that the 1956 amendment was to effectuate the purpose of [the 1954] whether section 161 applied to the intended to deal only with simple Act", again not limiting the activities of the Commission itself. In trespass while the regulation Commission's jurisdiction to a particular discussing this issue, the court promulgated under section 161i dealt class of entities. By the terms of section contrasted the activities of the with trepass involving dangers to health 161, the reach of the Commission is not Commission to the activities of private or security, the court rejected this confined to those who hold licenses industry or licensees, and concluded argument, reasoning that section 161i from the Commission. that "[activities] authorized pursuant to was designed to allow Commission Comment: Some commenters argued this Act", to which section 161i refers, regulation of private participation in the that the cases cited in the are "those activities of private industry nation's atomic energy program, and not Supplementary Information discussion authorized by the Atomic Energy to permit regulation of the Commission's for the proposed rule do not support the Commission" pursuant to the various own activities. Consistent with proposition that the NRC's jurisdiction provisions of the Act. 236 F.2d at 438 Reynolds, therefore, the amendments to issue orders extends beyond the (emphasis in original). The holding in here promulgated focus on the entities which hold licenses from the Reynolds is not that section 161i applies regulation of private industry.

Commission. only to licensees; the holding is that As for the FCC cases cited in the Response: As noted in the section 161i does not apply to the Supplementary Information in support of Supplementary Information discussion, Commission's own activities. the proposition that the FCC's ordering there are few court cases dealing with Accordingly, Reynolds does not stand authority is necessarily broad, the the scope of general authority granted to for the proposition that the Commission commenters do not dispute the the NRC. The cases cited for the lacks jurisdiction over any person who Commission's statement that the FCC's proposition that the NRC's jurisdiction is engages in conduct within the enabling statute is analogous to section uniquely broad and flexible deal with Commission's subject matter jurisdiction 161i(3). Rather, since several of the cited "subject matter" jurisdiction of the NRC unless that person is licensed. decisions concern the FCC's rulemaking and not with "personal" jurisdiction, but Reynolds involved the validity of a and ordering authority with regard to its are nevertheless supportive of the view regulation issued by the Commission to licensees, as opposed to unlicensed that the NRC's personal jurisdiction is bar U.S. citizens from entering a 390,000 persons, the commenters would dismiss broad. square mile "danger area" surrounding their relevance. This conclusion is Where Congress does not include testing grounds being used by the misplaced; the cases support the general statutory provisions governing in Atomic Energy Commission to conduct principle for which they are cited. personam jurisdiction, it is appropriate nuclear tests. The regulation was Moreover, one of the cases, United to look to the scope of subject matter purportedly issued under section 161i, States v. Southwestern Cable, 392 U.S. jurisdiction in order to determine the and violation of the regulation was a 157 (1968), specifically deals with scope of in personam jurisdiction. Since felony, pursuant to sw:::tion 223. In agency ordering authority over Congress did not include any specific deciding whether the trespass regulation unlicensed entities. personal jurisdiction provisions in the was authorized, the court focused on the 1954 Act, or any limitations on such purpose of the 1954 Act-"to provide for In Southwestern Cable, it was held jurisdiction, the NRC is authorized to increased private participation in the that the FCC's ordering authority under assert its personal jurisdiction over atomic energy program * * * ." 286 F.2d section 154i of the Federal persons based on the maximum limits of at 436. The court repeatedly noted that Communications Act, an enabling its subject matter jurisdiction. The the 1954 Act provides in numerous statute which in many ways is agency's personal jurisdiction is sections that "private parties shall be analogous to the 1954 Act, extended to established when a person acts within subject to safety and security unlicensed persons if those persons the agency's subject matter jurisdiction. regulations enacted by the were engaged in activity that fell within While some commenters discount the Commission", id. at 436; that the 1954 the FCC's subject matter jurjsdiction. relevance of the cited cases because Act gives the Commission power to The Court found that the FCC was they concern the application of the "authorize private industry" to authorized to issue an order to a CATV Commission's authority to license participate in the development of system to stop activities having adverse entities, the context in which the cases peaceful uses of atomic energy, id. at effects on FCC licensees, even though arose does not diminish the courts' 435; and that section 161i was "designed the FCC did not require CATV systems conclusions that the Commission's to allow Commission regulation of that to be licensed. The court reasoned that, authority is uniquely broad and flexible. private activity." Id at 441, While the in the absence of compelling evidence The cases presented support the court tended to use "private parties" that Congress intended otherwise, statement that the NRC's statutory and "licensees" somewhat administrative action imperative for an authority is exceptionally broad.

• interchangeably, the words are dicta in agency's ultimate purposes should not Although the cases do not deal directly terms of the holding of the case, namely, be prohibited.

with the narrower point presented that section 161i does not apply to the The commenters attempt to here-whether the NRC's ordering Commission's own activities. distinguish.Southwestern Cable on the authority under section 161 deals with Moreover, the court in Reynolds was grounds that the activity involved in that nonlicensees-there are no cases influenced by the fact that in 1956, two case did not require a license, while in directly on that point. years after the enactment of section the NRC's case the conduct of the As for Reynolds v. United States, 266 161i, Congress enacted an amendment individual is directly related to an F.2d 433 (9th Cir. 1960), cited by some granting the Commission power to deal activity which clearly is subject to NRC commenters as directly in conflict with with trespasses, accompanied by a licensing under the Act. In contrast to the NRC's position, that case in fact Congressional statement that the the belief of the commenters, this

• does not undercut the NRC's position Commission did not previously have distinction argues in favor of the NRC that it may exercise jurisdiction over such authority. Congress provided that position, and not against it, since the unlicensed entities. As the violation of this regulation was a activity at issue here is subject to 2-SC-85

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• STATEMENTS OF CONSIDERATION licensing, a more rigorous form of limited to NRC licensees or persons who limits the civil penalty liability of regulation than that envisioned by the are required to obtain a license * * * ," individuals to individual directors and FCC. In Southwestern Cable, the Similarly, section 210 of the 1974 Act, responsible officers of firms who unlicensed CATV system which the the "whistleblower" protection statute, knowingly or consciously fail to report Supreme Court found subject to FCC authorizes the NRC to regulate the as required, and does not otherwise regulatory authority had not violated conduct of unlicensed employees address the NRC's enforcement any statutory provision or regulatory engaged in specified activities. Section authority.

requirement. 210 would not have been necessary had Evidence that Congress did not The commenters also noted that in the NRC already possessed authority to expand the NRC's jurisdiction when it Southwestern Cable, the Court upheld issue orders to any person engaged in an enacted section 206 is found in section regulatory authority over the then new activity that could affect nuclear safety. 206(c), which requires the posting of that communications technology of CATV, Therefore, with the enactment of section's reporting requirements on the while the NRC is seeking direct sections 206 and 219 of the Energy premises of any facility "licensed or regulatory authority over established Reorganization Act, the Congress otherwise regulated pursuant to the industry participants who have been in extended the Commission's authority to Atomic Energy Act of 1954, as existence since the industry began. include nonlicensees as well as amended." Surely, Congress did not However, upon analysis, the link licensees, but only in these specifically intend to exempt vendors from this between such unlicensed participants delineated circumstances. requirement, since the section was engaged in an area subject to the NRC's Response: The Commission views aimed at notification by vendors of regulatory authority is more direct than section 206 as a mandate to the AEC to defects. Thus, section 206, itself reflects the link between.the FCC's statute and exercise its authority to require the congressional view that vendors are an industry not even in existence at the reporting of safety defects, and not an subject to Atomic Energy Act time of the enactment of that statute. expansion of existing authority. There is jurisdiction and rebuts the commenters' The commenters err in stating that these only one sentence on the purpose of argument that section 206 expanded unlicensed persons would "suddenly" section 206 in the Conference Report: NRC's jurisdiction. Consistent with be subject to direct regulatory "Generally [section 206) is directed section 206(c), the Commission, in 10 enforcement authority; these persons toward assuring that the Commission CFR part 21, has interpreted this posting have always been subject to direct has prompt information concerning requirement to include vendors. See 10 enforcement authority under the statute, defects in major components of facilities CFR 21.2, 21.6. Almost without although the NRC has not, until now, subject to licensing which would create exception, since the part 21 regulations seen the need to exercise that authority a substantial safety hazard." H.R. Rep. were first imposed, vendors have through implementing regulations. No. 1445, 93 Cong., 2d Sess. 37 (1974), co*mplied with the posting requirements Moreover, these persons have always U.S. Code Cong. & Admin. News 1974, p. of § 21.6 by posting on their premises been subject to indirect regulatory 5550. Section 206 was enacted by the copies of the documents specified in that enforcement, since the Commission has Congress in response to an increase in section. exercised its authority over licensees by safety defects, to emphasize the need for Even if one were to view section 206 issuing orders that may have an prompt identification of deficiencies at as a Congressional extension of immediate adverse impact on all levels of facility construction, Commission authority, it does not follow unlicensed individuals. The Commission including components supplied by that the Commission's authority prior to believes that it will be more effective to vendors. Citing the fact that component the enactment of section 206 was limited exercise its statutory authority to failures accounted for more than half of to licensees, as the commenters argue. protect public health and safety by the abnormal occurrences reported to The 1954 Act, in its broadest sense, direct means rather than indirect means. the AEC in 1973, the Congress authorized the creation of a civilian Comment: Section 206 of the Energy determined to provide, specifically, for nuclear power industry, and conferred Reorganization Act of 1974, as amended, the reporting of safety defects and uniquely broad and flexible authority on (the 1974 Act) subjects to NRC noncompliance. Section 206 emphasizes the Commission in order to carry out the regulation the conduct of unlicensed

• the importance of prompt reporting. This purposes of the 1954 Act. As discussed persons engaged in specifically-defined section should not be read as an above (in response to the comment activities that do not require a license. extension of AEC authority, but rather concerning the statutory basis to Section 206(a) is specifically limited to as a mandate by the Congress that the support the issuance of orders to directors and officers of NRC licensees AEC must exercise its authority to unlicensed entities), the provisions of and of vendors, contractors, and compel prompt reporting by both sections 16th and 161i of the 1954 Act suppliers, and not to all individual licensees and vendors. By including the authorize the Commission to issue employees of those persons. In the view provisions in section 206, the Congress orders and otherwise regulate persons of the commenters, this represents an intended t'l "upgrade the system of based on their involvement in specified expansion of NRC jurisdiction beyond detecting and anticipating the defects activities; this authority is not based on the authority conferred in the 1954 Act; that increasingly have plagued" the whether such persons hold licenses.

section 206 would have been industry. S. Rep. No. 93-980, 93 Cong., 2d Similarly, section 1610 authorizes the unnecessary if the NRC's then existing Sess. 67 (1974), U.S. Code Cong. & Commission to require such reports "as authority included the authority to Admin. News 1974, p. 5528. The may be necessary to effectuate the "demand" information from and Commission reads the statement in the purposes of this Act", again not limiting penalize the directors and responsible Senate Committee Report that there is the Commission's jurisdiction to a officers of contractors and vendors of no "similiar provision" in the 1954 Act particular class of persons. licenses. Moreover, in the discussion as just that-i.e., there is no similar Sections 206 (c] and (d) also grant the accompanying the promulgation of a provision specifically requiring such NRC authority to require contractors 1983 amendment to part 2, the reporting-and not as a statement that and vendors to post the notices required Commission stated that, "[i]n general, there is no authority in the 1954 Act to by section 206 and to conduct the Commission's regulatory authority is require such reporting. Section 206(a] "inspections and other enforcement 2-SC-86

PART 2

• STATEMENTS OF CONSIDERATION activities" as needed to ensure As for the Commission's 1983 Comment: Section 234 of the 1954 Act, compliance with section 206. Prior to the statement when it amended its cited in the Supplementary Information enactment of section 206, the regulations to enable it to issue a notice discussion for the proposed rule, does Commission's inspection of contractors of violation to any person subject to the. not provide support for the NRC's and vendors was conducted under jurisdiction of the Commission, that "[i]n jurisdiction to issue orders directly to authority derived from the licensee: AEC general, the Commission's regulatory unlicensed individuals.

would request the licensee to instruct its authority is limited to NRC licensees or Response: As stated in the vendor to permit Commission inspectors persons who are required to obtain a Supplementary Information, the to enter the vendor premises and license* * *", the Commission stated proposed changes concerning willful inspect. The legislative history of clearly at that time that its legal misconduct are made under the section 206 is sparse, but the authority extended to non-licensees. The authority of sections 161b and i and the cornmenters argue [supported by their Commission went on to note that licensing provisions enumerated in view of Reynolds v. U.S.) that because "person" is broadly defined in 10 CFR section 234a. Section 234 itself is not the 1954 Act does not grant any 2.4(o), that the Commission's authority relied on as conferring jurisdiction to authority over contractors and vendors to issue notices of violation to non- issue orders. as such, inspection of vendor records or licensees is not limited to section 206 of Comment: Two commenters premises could not assist the the Energy Reorganization Act and part expressed concern over the Commission in exercising any statutory 21, and that the Commission would issue Commission's intention to exercise authority and is therefore not notices of violation against non- jurisdiction over an entity that held a authorized. This view is inconsistent licensees "in appropriate cases when license or was otherwise engaged in with the broad authority provided by the requirements directly imposed upon licensed activities at the time of the non-licensees are violated." The rule on conduct in question, but that no longer Act in sections 161 b, i, and o, as deliberate misconduct directly imposes holds a license or is so engaged. One described above, since it has always requirements on non-licensees, and the commenter felt the Commission lacked been recognized that licensees in many Commission may issue notices of such jurisdiction if the entity was no areas must rely on vendors and violation to, or take other appropriate contractors whose actions can impact longer "actively connected" with the site enforcement action against, non- and had not indicated an intent to on the public health and safety. licensees for violation of those However, if the 1954 Act were to be continue using licensed materials, and requirements. that trying to reach such entities went read with the suggested limitation, it Section 210 of the 1974 Act authorizes beyond doing what is "necessary" to would still have no impact on the 1954 the employees of NRG licensees and protect health to what is merely Act's ability to regulate individuals applicants, and of their contractors and desirable. This commenter also felt that engaging in "hands on" activities at a subcontractors, to take their grievances Southwestern Cable provides no support facility or who are direct participants in to the Secretary of Labor in instances for the NRC position because that case an activity subject to NRC licensing where they feel they have been involved companies actively engaged in authority [e.g., industrial use, medical retaliated against for raising safety activities, rather than persons no longer use), since the 1954 Act contains a broad concerns. The Senate floor manager of so engaged. The other commenter was grant of authority over "any activity" the 1974 Act explicitly warned against concerned with the potential for abuse authorized pursuant to that statute. drawing any inference from the new due to a lack of a time frame or criteria In conclusion, even if one were to legislation that the Commission for such action. determine that section 206 conferred previously lacked authority to Response: Section 161i provides broad new reporting authority over individual investigate alleged acts* of authority to issue orders as the officers and directors of vendors and discrimination or to take appropriate Commission deems necessary to govern their firms, it should not be inferred that action. In urging his colleagues to accept any activity authorized pursuant to the authority under section 161 was lacking the amendment, he said that Act. A person who is no longer engaged over other individuals engaged in * *

• While new Section 210 of the Energy in licensed activities is not beyond the activities subject to the Commission's Reorganization Act of 1978 provides the reach of the NRC's jurisdiction jurisdiction, such as employees of Department of Labor with new authority to concerning conduct engaged in while licensees and anyone performing investigate an alleged act of discrimination in that person held a license, simply due to, services at a licensee site. Rather, if this context and to afford a remedy should for example, the passage of time, the section 206 is viewed as an extension of the allegation prove true, it is not intended to fact that the person no longer holds a jurisdiction, it should be viewed at most in any way abridge the Commission's current license, or the fact that the person has as an extension to include reporting by authority to investigate an alleged abandoned the site. Accountability for contractors and vendors. To view discrimination and take appropriate action acting in accordance with a license or section 206 as suggested by the against a licensee-employer, such as a civil Commission requirements in effect commenters would lead to an penalty, license suspension or license during the period of a license does not incongruous result: individual officers revocation. Further, the pendency of a disappear upon expiration or and directors of private, commercial proceeding before the Department of Labor termination of that license and the business (i.e., vendors and contractors) pursuant to new Section 210 need not delay Commission's authority extends to such who may only be tangentially involved any action by the Commission lo carry out persons when necessary or appropriate the purposes of the Atomic Energy Act of in licensed activities, could be held 1954. to protect the public health and safety.

personally liable for their actions, while See, e.g., Nuclear Engineering Co. individuals employed full-time by . 124 Cong. Rec. S15318 [daily ed. Sept. 18, [Sheffield, Illinois Low-Level entities engaged in licensed activities 1978) [remarks of Senator Hart). These Radioactive Waste Disposal Site), CU- [e.g., a medical technician who covers remarks refute the argument that 79-6, 9 NRC 673 [1979). The issues of up a serious overdose of radioactive Congress passed section 210 because it retroactivity of regulations promulgated material to a patient) would be beyond thought the Commission lacked after the expiration of a license is not the reach of the Commission. investigatory authority. addressed in this rule. 2-SC-87

PART 2

• STATEMENTS OF CONSIDERATION Southwestern Cable does not turn on notice that he or she may be subject to subject of the Demand is warranted.

the timing of the activity in which the individual enforcement action. Similarly, However, the Commission has decided entities were engaged; it is the adverse if a person with the requisite knowledge to address this concern in its final rule effect on the regulated activity that gave deliberately provides false i:qformation by deleting the use of the term Demand rise to the FCC's assertion of to the NRC, a licensee, or a contractor or to Show Cause, which several jurisdiction. Arguably, an adverse effect subcontractor of the same, tHa t person is commenters appear to have confused can be equally severe when the activity on notice that he or she may be subject with an Order to Show Cause, and using has been engaged in some time in the to enforcement action, according to the instead a Demand for Information, a past. If an activity (e.g. CATV) that does terms of the regulation. pre-enforcement document which the not require licensing is subject to In the above cases, the person knows Commission has been utilizing for regulatory authority, a fortiori an he or she is acting in an area that relates several years. With respect to activity covered by a license that has to a licensee's activities subject to NRC unlicensed persons, the final rule subsequently expired (i.e., former NRC regulations. For situations that do not provides that a response to a Demand licensees) is subject to regulatory actually result in a violation by a for Information is not required of the authority for matters arising out of licensee, anyone with the requisite. person to whom it has been issued. With activity engaged in during the period of knowledge who engages in deliberate these modifications, the final rule should the license. misconduct as defined in the rule has not give rise to the same expressions of In exercising its authority in this area, the requisite intent to act in a manner constitutional concern. the Commission intends to apply a rule that falls within the NRC's area of Accordingly, in situations where the of reason and to concentrate on matters regulatory concern. The fact that the Commission seeks information in a pre-of potential significance. action may have been intercepted or enforcement context, the Commission Comment: With regard to willful corrected prior to the occurrence of an has decided to codify in § 2.204 of the misconduct that does not involve an actual violation has no bearing on actual violation ofNRC rules, but that whether, from a health and safety final rule the use of a "Demand for causes the NRC to lose reasonable standpoint, that person should be Information." The Commission routinely assurance, several commenters were involved in nuclear activities. Similarly, has issued Demands for Information to concerned that the provision is too a person with the requisite knowledge licensees in order to determine whether broad in scope and needs further who deliberately provides false or to initiate an enforcement action. The definition to avoid an unacceptable inaccurate information that is material use of these documents has not given level of uncertainty as to the to the NRC presents a health and safety rise to expressions of due process enforcement process. Others stated that concern within the NRC's regulatory concerns. As with the proposed rule, the there is no basis for taking enforcement sphere. purpose of the Demand for Information action against anyone for conduct that The modifications, as described is to gather information that can be does not violate a specific regulation or above, to the final rule have been made evaluated before the Commission other law, questioning how such to alleviate concerns over the rule's determines whether it must take action conduct can be improper in any way. scope. To further alleviate concerns, against an individual or other entity. Response: The Commission has examples of specific situations covered The Demand for Information will set redrafted the rule to delineate with by the rule are set forth in the statement forth the basis for the need for specificity both the kinds of persons of considerations. The situations that information, and will require, as to who are encompassed by the rule (i.e., a are not covered by the final rule will licensees only, an answer that licensee, an employee of a licensee, and continue to be subject to enforcement "specifically admit[s] or den[ies] each other specified persons and their action against licensees that may impact allegation or charge made* * *." A employees who knowingly provide the individual. nonlicensee who receives a Demand for "components, equipment, materials, or Comment: Several commenters Information will be given the other goods or services that relate to a expressed the view that the absence of opportunity, should the nonlicensee licensee's activities subject to this part") hearing rights to recipients of "Demands choose not to respond, to tell the NRC and the kind of conduct that would to Show Cause", and to the interested why it believes a response is subject that person to enforcement public, is a denial of due process. Many inappropriate and why the Demand action (deliberate misconduct, or felt that a Demand to Show Cause is not should not have been issued. The use of deliberate submission of materially preliminary to, but part of, an this document is intended to provide an incomplete or inaccurate information). enforcement proceeding, and to opportunity for the recipient to set forth These changes in the final rule were characterize it as preliminary is any information it wishes to bring to the made to make clear that the person who misleading; it both alleges violations or attention of the Commission in advance is subject to this rule must have wrongdoing, and it requires admissions of a possible enforcement proceeding. reasonable knowledge that his or her and denials under oath. Adoption of the While Section 189 of the Act provides actions are related in some manner to proposed rule, as it relates to a Demand for the granting of a hearing in an activity subject to NRC regulations. to Show Cause, would create a situation connection with proceedings to modify, In situations involving deliberate wherein the potential exercise of the suspend or revoke a license, neither the misconduct, enforcement action is NRC's authority is without reasonable 1954 Act nor the Administrative limited to cases where the person either bounds, contrary to law and in violation Procedure Act requires a hearing in deliberately engages in conduct that of constitutionally protected.rights. connection with a document which causes a violation by a licensee or that, Response: The Commission believes requires only the submission of but for detection, would have caused a that this viewpoint results from a information. The final rule, as revised, violation by a licensee. If a person with misunderstanding of the nature of a does not eliminate any hearing rights the requisite knowledge intentionally Demand to Show Cause. A Demand to afforded under the statutory provisions acts in a way that causes, or that, but for Show Cause is preliminary in the sense of the 1954 Act; rather, it continues those detection, would have caused, a licensee that the Commission only is requiring rights. See § 2.202 (a)(3). Once the NRC to be in violation of an NRC information in order to determine has made a decision that it is necessary requirement, that person is now on whether enforcement action against the to take action against an entity, an 2-SC-88

PART 2

• STATEMENTS OF CONSIDERATION opportunity for hearing is provided to The Privacy Act also requires an wrongdoer will be afforded notice and challenge the action and, except when agency that maintains a system of an opportunity to clear his or her name required for public health and safety records to ensure that all records used under the new regulations, there will be reasons or if the violation is willful, that by the agency in making any no violation of the Privacy Act's hearing precedes the effectiveness of the determination about an individual be requirement of ensuring that the order. See§ 2.202 (a)(5). maintained with such accuracy, information in the system of records is relevance, timeliness, and completeness accurate. See Board of Regents v. Roth,

2. Privacy Act Considerations as is reasonably necessary to assure 408 U.S. 564 (1972). Following the Comment: Two commenters suggested fairness to the individual in the hearing, the order against the individual that collection, maintenance, and determination. 5 U.S.C. 552a(e)(5); see would be included in the compilation distribution of the names of unlicensed also S. Rep. No. 93-1183 and H. Rep. No. pending the outcome of any appeal.

persons subject to NRC enforcement 93-1416, 93d Cong., 2d Sess., reprinted in The Privacy Act requires that prior to orders would be inconsistent with the 1974 U.S. Code Cong. & Admin. News information being compiled or disclosed NRC's other statutory obligations, like 6917; National Treasury Employees by an agency, a system of records and the Privacy Act, but did not expound Union v. IRS, 601 F. Supp. 1268 (D.D.C. the routine uses for which the further. 1985). information will be disclosed must be Response: While the Commission Maintaining a list of individuals to published in the Federal Register, in stated in the Statement of whom orders have been issued will accordance with 5 U.S.C. 552a(e)(4)(D) Considerations accompanying the comply with these requirements. The and (e)(11). Further, the Privacy Act proposed rule that the Commission NRC's new regulations provide for a full requires that a routine use not only be intended to distribute periodically a range of due process guarantees compatible with, but also related to, the compilation of orders issued under the associated with an order being issued purpose for which the record is to be .. rule, distribution of such a document is against an unlicensed person. maintained. See Privacy Act Guidelines, not part of this rulemaking. However, Specifically, the unlicensed person 40 FR 28953 (July 9, 1975); 5 U.S.C. the Commission has decided to address would be provided the same type of 552a(a)(7). the comments relating to a "list" herein. adjudication process that is currently Although implementation of the NRC's The Privacy Act, 5 U.S.C. 552a, was provided, under the 1954 Act, for new regulations contemplates the enacted to protect individuals against licensees. See 10 CFR 2.202(a)(3). circulation of a compilation of orders unwarranted invasions of their privacy The Privacy Act does not prohibit the issued to unlicensed individuals subject stemming from Federal agencies' creation of a list; it simply mandates to an NRC enforcement order collection, maintenance, use, and that if a list is created, it will be done (accompanied by a list of the affected disclosure of personal information about under certain strict rules and will individuals), the Commission will, prior

• them. Further, "the Privacy Act governs provide a great measure of protection the responsibilities of federal agencies to distributing the compilation, comply for the individuals subject to it by with the requirements of the Privacy in the disclosure of, access to, and providing the individual greater control Act. The NRC will establish and publish content of their records concerning over the gathering, disclosure and individuals." BBCA, Inc. v. United accuracy of information collected about in the Federal Register notice of its new States, 630 F. Supp. 349, 348 (D. Minn. him or her. See Parks v. IRS, 618 F.2d system of records and the intended use 1986); see also 5 U.S.C. 552a(b). 677 (1oth Cir. 1980); Miller v. U.S., 630 F. of the information in the system. The For purposes of the Privacy Act, in Supp. 347 (E.D.N.Y. 1986). It does this by notice will indicate that all individuals analyzing the issue of whether affording the individual the means of who have enforcement orders issued information may be collected, the initial ascertaining and ensuring that the against them will be the subject of the consideration is whether the information agency's records contained within a system of records and a routine use of is of the type that an agency may system of records are proper and these records will be the circulation of maintain under a system of records. accurate. The individual has a right of the compilation and list of those Under the Privacy Act, a system of access to the information compiled by persons. One purpose for maintaining a records is to be maintained with only the agency and to seek correction of list of individuals who have deliberately that "information about an individual inaccuracies contained therein. See 5 violated an NRC rule or regulation is to

[which] is relevant and necessary to U.S.C. 552a(d)(2). ensure that the industry is aware of the accomplish a purpose of the agency As is currently the procedure for actions of persons working in the [that] is required to be accomplished by licensees subject to an enforcement nuclear field. Therefore, the routine use statute or Executive order of the order, an order against an unlicensed is compatible with the NRC's reason for President." 5 U.S.C. 552a(e)(1). The individual will be published in the maintaining the information. statute under which the NRC derives its Federal Register and be the subject of a Comment: Four commenters authority in this case is the 1954 Act. press release. See 10 CFR part 2, subpart expressed apprehension over the As set forth above, sections 161b and B. Further, it is not until the order has collection, maintenance, and 161i of the 1954 Act provide broad been issued and the individual has been distribution of the names of unlicensed ordering authority and, as relevant here, afforded an opportunity for a hearing, persons subject to NRC enforcement section 1610 authorizes the Commission that the order issued against him or her, orders, suggesting that it would be to order reports as may be necessary to and his or her name, is to be included in tantamount to the creation of a effectuate the purposes of that Act. the compilation to be distributed. "blacklist" and was subject to numerous Maintenance of a Privacy Act system of Delaying the inclusion of the order in the legal infirmities. These commenters did records containing the names of listing will allow an independent review not indicate the precise nature of the individuals subject to NRC enforcement of the stafrs action. This will be the perceived legal impediments. orders is relevant and necessary to practice even in the case of immediately Response: In order to respond to accomplish the purposes of the 1954 Act. effective orders. This compilation will concerns about potential blacklisting, it Therefore, the new NRC regulations are include only those individuals who are may be helpful to consider what is in accord with the requirements of the currently the subject of an enforcement considered objectionable about Privacy Act. order. Therefore, as the alleged blacklists. Generally, the most 2-SC-89

PART 2

• STATEMENTS OF CONSIDERATION distasteful aspect of a blacklist is its information to be compiled is being Commission requirements. Thus, secrecy and, often, the arbitrariness accomplished through the statutory additional enforcement options are with which one may have been included powers enumerated in the Atomic needed to directly address these on this type of list. Moreover, Energy Act. . situations. As narrowed, the rule will individuals on the list may not be aware A regulation that is analogous to the now address these situations when they that they are on it, and thus, they are not NRC regulations is the listing of involve deliberate actions.

able to challenge their inclusion on the debarred government contractors under As for the possibility of repeat list. the Federal Acquisition Regulations, 48 violations, in several instances the NRC In reviewing the legislative history of CFR 9.404 et seq. Under these has been faced with situations where the Privacy Act, as well as case law on debarment regulations, the General wrongdoing by an unlicensed individual the subject of blacklisting, it is clear that Services Administration (GSA) compiles led to a conclusion, for reasons of public Congress included section 552a(b) of the and distributes a list of contractors who health and safety, that the individual Privacy Act, which prohibits the have been debarred, suspended, should not be involved in licensed disclosure of personal data or records, proposed for debarment, or declared activities. However, even when the

• to halt the blacklisting of persons who ineligible by an agency for participation individual is barred from licensed did not comply with organizational in Federal government procurements, to activity for the licensee by whom he or norms. See S. Rep. No. 1183, 93d Cong., all agencies and interested private individuals. These debarment she has been employed, and even when 2nd Seas. 6966 (1974). The few court an information notice has been sent to cases that have dealt with the procedures have been found to satisfy the requirements of due process as they all licensees so that they are aware of interpretation of the term "blacklisting" the individual's conduct, there is no in the Federal arena have dealt with afford contractors their full due process rights, including notice of the charges enforceable prohibition on the compiling and circulating a listing of individual himself or herself that would persons who do not participate in and a hearing. See Old Dominion Dairy

v. Secretary of Defense, 631 F.2d 953 preclude his or her obtaining savings bond drives or charity employment in licensed activities at campaigns and the listing of results of (D.C. Cir. 1980); Gonzalez v. Freeman, 334 F.2d 570 (D.C. Cir. 1964). The listing another facility. In the absence of an employee tests or performance. These of debarred contractors is distributed to order to that individual, there is no lists have been held to violate the protect the Government's interests. The mechanism, short of issuing orders to Privacy Act because disclosure of the fact that the GSA listing is not every NRC licensee barring the information was not needed by the considered an improper method of individual's employment, to assure that agency in the regular performance of its providing information to the public on the individual does not engage in work and neither was it a subject of the these ineligible contractors supports the licensed activities for a specified period agency's routine uses. See Parks v. IRS. principle that the NRC's list is not an of time. Without the ability to track the supra (IRS personnel files of employees improper way to inform the industry and future employment of individual who had not pledged to purchase to track the movement of individual wrongdoers, potential health and safety government savings bonds were wrongdoers in the nuclear field. problems may never be detected.

supplied for the purpose of a telephone Comment: One commenter suggested campaign for the purpose of soliciting 3. Other Comments Based on Legal Concerns that the NRC should consider whether their purchase of bonds.) the licensee should have notice and an The purpose of the compilation of Comment: No real basis has been opportunity to be heard concerning orders to be distributed by the NRC is established to show that it is necessary orders or demands issued to its distinguishable from those cases and the to issue orders against unlicensed employees or contractors. The meaning given the term "blacklisting" individuals or entities. Action against possibility exists that an order or by Congress and the courts. First, a licensees for the actions of nonlicensed demand may be issued to a licensee routine NRC use will be the listing and individuals or entities, while indirect, employee or contractor without notice to subsequent circulation of the names of can have the same effect as the orders the licensee. individuals who have engaged in contemplated in the proposed rules. deliberate misconduct, or deliberately Moreover, there is no showing that Response: The NRC agrees that there submitted incomplete or inaccurate repeat violations have occurred or are are situations where it is appropriate to information, as provided in the rule. probable, and no evidence is cited to afford the licensee notice and Second, as described in the Federal substantiate the suggestion that the opportunity to be heard. It is the

• Register notice, this use would provide proposed rules would deter the intention of the staff, in the case of an persons in the nuclear industry with the misconduct they address. order against a licensee's employee, to names of individuals who have been Response: As pointed out in the serve the licensee with a copy of such subject to enforcement action under the Supplementary Information order and consider the licensee's rule. accompanying the proposed rule, even if comments. In the case of an order to a It is recognized that these individuals an unlicensed individual should be contractor, if the matter involves a may find it difficult to obtain dismissed by a licensee or ordered particular licensee or licensees, the staff employment in the nuclear industry. removed by the NRC because of his* intends to serve the licensee(s). Where However, the Commission does not wrongdoing, the wrongdoer may seek the order to a contractor involves issues believe, nor is there any indication, that other employment in the same field at of generic concern, the decision whether the compiling and circulating of a list of another facility. This may occur without to serve licensee(s) will be made on a unlicensed individuals subject to public the knowledge of the NRC or knowledge case by case basis. However, all such NRC orders published in the Federal by the new employer of the employee's orders will be published in the Federal Register would constitute an prior conduct. Existing regulations do Register.

impermissible "blacklisting" of those not address this problem. In addition, Comment: There seems to be no persons. As stated above, the NRC's willful acts of licensees' contractors, opportunity for a person whose name new regulations are in compliance with vendors, or their employees have caused appears on a list of persons subject to the Privacy Act and, further, the licensees to be in violation of an NRC enforcement order to defend 2-SC-90

PART 2

• STATEMENTS OF CONSIDERATION.

himself or herself prior to being placed Enforcement actions within NRC Transportation, F.A.A .. 722 F.2d 882,885 on the list circulated by the NRC. authority include license revocations, (Fed. Cir. 1985). Response: Under both existing and suspensions and modifications, cease In the Leak Rate Data Falsification proposed § 2.202(a)(3), a licensee or any and desist orders, civil penalties, and case the Board departed from that other person adversely affected by an notices ofviolation. The NRC has the standard because of the unique order has a right to demand a hearing. If authority to take such action as it deems circumstances of that case. In a hearing is demanded, even in a case necessary to protect the public health determining that it would use the "clear where the order is made immediately and safety, including the authority, and convincing" standard for some, but effective (prior to a hearing) because the when appropriate, to take immediate not all issues, the Board stated that it Commission has found that the public action. The DOJ has the responsibility to was doing so "as a matter of discretion." health, safety, or interest so requires or determine whether to institute criminal Id. at 691. The Board's decision to apply if the violation is willful, it is the prosecution for willful violations of all the "clear and convincing" standard to intention of the NRC to refrain from Federal statutes, including the Atomic findings of manipulation and . including an order concerning the Energy Act of 1954, as amended. Thus, falsification was based not only on the individual in the circulated compilation both the NRC and DOJ have authority fact that the findings were likely to have of orders to individuals until the and responsibility to take action for strong reputational impacts, but also on evidentiary hearing is concluded. certain violations that may arise out of the fact that those findings involved the Comment: One commenter questioned the same factual matters. Coordination most serious memory difficulties in the the propriety of including proposed of these matters is provided for in a proceeding due to the fact that the § Z.ZOZ(f), which requires the procedures Memorandum of Understanding proceeding was conducted some 7 to 8 of § 50.109 to be followed if the order between the NRC and DOJ. See 55 FR years after the incidents giving rise to involves a backfit. The commenter 50317 (December 14, 1988). In some the inquiry, due to circumstances stated that, if an order was necessary to cases, it may be appropriate for the NRC beyond the Board's control. ensure adequate protection to the health to stay its hand pending a criminal and safety of the public, costs to the As a result of this comment, the prosecution. In other cases, the public licensee should not be considered. Enforcement Policy, which states that health and safety may require Response: The premise for issuing an "An enforcement action (involving an immediate NRC action that could impact order to remove an individual is that a potential criminal prosecution. By individual) will normally be taken only there is not reasonable protection to the acting to protect the public health and when there is little doubt that the public health and safety if that person is safety, the NRC is simply fulfilling its individual understood, or should have allowed to be involved in licensed understood, his or her responsibility statutory mandate. activity. Section 50.109(a)(4)(ii) provides * * *." hae: been modified. The Policy It should be remembered that when now uses the term "satisfied" rather that a backfit analysis is not required the NRC acts to protect the public health when the regulatory action is necessary than "little doubt". The previous and safety by instituting a proceeding to language may have implied an incorrect to ensure that the facility provides modify, suspend, or revoke a license, adequate protection to the health and standard of proof expected before taking hearing rights attach. In that way, the action. What is required is that the staff safety of the public. In other cases, a affected party receives the process to backfit analysis may be necessary. be satisfied that the individual fully which it is due, and the NRC is not understood or should have understood Comment: The term "subject to the "usurping" the party's hearing rights. jurisdiction of the Commission" is not his or her responsibility. clearly defined. A person accused of Comment: The NRC is using the wrong evidentiary standard of "preponderance Comment: One commenter questioned interference with required licensee the statement in the Supplementary performance should be tried in a court of the evidence" for determining whether wrongdoing has occurred such Information that "once the proposed of proper civil or criminal jurisdiction (part 2) rules are in effect" there will be and the NRC should not attempt to that an order should be issued against an individual. Citing Inquiry Into Three "procedural rules" governing the usurp the role of the courts. issuance of an order or demand to show Response: Under Federal statutes, the Mile Island Unit 2 Leak Rate Data Falsification, LBP-87-15, 25 N.R.C. 671 cause, interpreting this to mean that NRC has the responsibility to protect the additional procedural rules would then public, the common defense and (1987), aff'd, CLI-88-2, 27 N.R.C. 535 (1988), the commenter believes that in be developed. security, and the environment Response: By this statement, the (collectively referred to here as public cases against individuals, where findings can cause serious injuries to Commission was referring to the health and safety), from hazards that proposed rules which, when adopted, might arise from the material and reputation, the evidence must be "clear and convincing". would then constitute the "procedural facilities which it regulates. The rules" referred to. At this time the enforcement program of the NRC is Response: The preponderance of the evidence standard is the one Commission does not contemplate designed to fulfill these responsibilities additional procedural rules to implement by ensuring compliance with NRC customarily applied in Commission proceedings, including proceedings these changes. requirements, obtaining prompt correction of violations and adverse against individuals. It is the standard of Comment: The proposed changes to conditions affecting safety, encouraging proof prescribed in the legislative part 2 constitute a backfit under § 50.109 improvement of licensee performance, history of the Administrative Procedure by imposing the "demand to show and deterring future violations. In Act (APA). Steadman v. Securities and cause" process, and a backfit analysis is contrast, criminal prosecutions for Exchange Com'n., 450 U.S. 91, reh. required. willful violations of NRC requirements denied, 451 U.S. 933 (1981). It is the

• Response: The proposed rule change are the responsibility of the Department standard applied in cases brought under is not a backfit, because it does not fall of Justice (DOJ]. Criminal prosecutions the APA, including, e.g., those into the 10 CFR 50.109(a)[1) definition of provide an additional tool to assure proceedings where an agency seeks to a backfit, i.e., it does not impose a compliance *and to deter future remove a federal employee for change to a licensee's "systems, violations. misconduct. See, e.g., Hale v. Dep't of structures, components, or design, * *
• 2-SC-91

PART 2

• STATEMENTS OF CONSIDERATION or design approval * *
• or the B. Policy Issues which is a clear benefit to the public procedures or organization * * *." health and safety.

1. Need for the Rules Comment: One commenter saw no Moreover, the Backfit Rule has been Comment: The NRC has not need for the rule to apply to licensee interpreted by the Commission to not demonstrated a need for the Demand to apply to administrative changes in NRC employees.

Show Cause; there is no suggestion that Response: The examples referred to procedure, which is what is being the Commission's current authority above involved employees of licensees, modified here. Finally, the amended rule under 10 CFR 50.54(f) is unworkable or and it was those cases that does not implicate any policy underlying is not available as an enforcement tool demonstrated the need for more the Backfit Rule. to respond to actions by unlicensed flexibility and led to proposing these The Backfit Rule was intended to individuals. Further, there is no rule changes. address regulatory stability, that is, once guidance as to how the provisions of Comment: There was no showing of the NRC granted regulatory approval to § 50.54(f) would be reconciled with why the criminal process is not conduct an activity, the terms and proposed § 2.204. satisfactory for dealing with problem conditions for conducting that activity Response: As stated in § 50.54(f), that individuals and, thus, the agency should would not be changed without cause. rule pertains only to reactor licensees. continue to rely on the criminal process. Rather than using a Demand to Show While it is available to obtain Response: The NRC refers cases that Cause, the final rule is codifying the use information from those licensees, it are suspected to involve criminal of a Demand for Information to which cannot be used to elicit information from wrongdoing to the Department of Justice licensees have been subject for many individuals or other entities that do not for consideration for prosecution. years. As for the-unlicensed individuals hold a license, or from the Commission's However, for a variety of reasons, the and entities subject to the rule change, materials licensees. Moreover, while DOJ declines to prosecute many of the no regulatory decision or approval is § 50.54(f) and a Demand for Information* referred cases. In any event, the involved per se. Therefore, they have no are essentially the same (as to Commission has the responsibility to interest protected by the Backfit Rule. licensees), a Demand for Information is decide whether a wrongdoer should be Moreover, § 50.109 applies only to normally preferred where enforcement sanctioned civilly and, in many cases, nuclear powerplant licensees, and not to action.is contemplated for violations or the Commission's responsibility to deliberate misconduct. . assure adequate protection of the public anyone else. The commenter did not attempt to establish that it applies to Similar provisions for obtaining health and safety requires it to take information from licensees exist in other certain action. Even in the few cases non-licensed individuals or entities. In parts of the Commission's regulations that are criminally prosecuted, it may be any event, an order would be issued (e.g., § 30.32(b), § 40.31(b)). The appropriate, for example, to limit the under the rule to a person when integrity Commission believes it is desirable to wrongdoer's involvement in licensed is lacking as a result of a deliberate . include in the regulations a single activities for a period of time, for violation such that there is no longer § 2.204, which can be used to get example, concurrent with a period of reasonable assurance that the licensee information from any person subject to probation. In other instances, there may will comply with Commission the jurisdiction of the Commission, be a long period before the criminal requirements with that person involved whether licensed or not, in order to prosecution takes place, and NRC must in licensed activities. Such assurance is determine whether an order should be take prompt action to limit immediate at the heart of the basis for the license. issued. threats to public safety. Finally, it Therefore, these orders fall into the Comment: There is no need for the should be recognized that the civil and compliance exception to the backfit rule willful misconduct rule. Some criminal standards of proof are different. in 10 CFR 50.109(a)(4). commenters see five cases per year as Comment: There is no basis for saying Comment: Two commenters raised the insufficient justification. Commenters that unlicensed wrongdoers are moving issue of Federal preemption. One feared also questioned the benefit to society, about in the industry; there is no that the NRC could prevent a person and the probability of success in evidence that current practices in from practicing a State-licensed preventing wrongdoing. checking references are inadequate. profession, and the other sought Response: As was pointed out in the Response: There is clear evidence that clarification that the rule would not Supplementary Information to the many persons in the nuclear industry preempt the States' reserved powers. proposed rule, the number of cases move from state to state. For example, Response: The Commission is charged expected to fall under these provisions partially in response to the mobility of is numerically small. However, they are physicians and other health care with responsibility for protecting the significant matters, involving serious practitioners, the Congress mandated public health and safety within its wrongdoing, and the Commission is establishment of a National Practitioner jurisdiction, and to the extent that it~ concerned that they pose a distinct Data Bank, which opened on September actions preempt state regulatory actions, threat to the safety of the public. Under 1, 1990. Also, there is the Physician that is an integral and accepted part of its mandate to protect the public health Disciplinary Data Bank operated by the the Federal system. See, e.g., Pacific Gas and safety, the Commission believes it Federation of State Medical Boards of 8- Electric Co. v. State Energy Resources appropriate to address these dangers, the U.S. In the nuclear power industry, Conservation and Development Com 'n, even if few in number. large numbers of outage workers 461 U.S. 190 (1983). The NRC will not be While there can be no guarantee that regularly go from plant to plant. prohibiting a person from practicing a regulation will be effective in every Representatives of organizations formed what is authorized by state license instance, the Commission believes that to create data banks of outage workers except to the extent that the person's this is the best available way to address to expedite access authorizations have actions involve issues of public health the problems that have been identified advised that present systems do not and safety in connection with NRC- in recent years and that expanding its always reveal that an employee was licensed activities. options in the enforcement area will terminated for cause and that reference deter wrongdoing in some instances, checking is not always adequate. 2-SC-92

PART 2

• STATEMENTS OF CONSIDERATION Moreover, it is apparent that some the rule to apply only to any person who provide any examples as to how in their individuals with specialized training do engages in deliberate misconduct, or view the rule might impact on these First not intend to discard that effort and deliberately submits incomplete or Amendment rights.

experience, and thus do seek to remain inaccurate information, as provided in within their particular occupational field the rule. Under this narrower rule, the 4. Better Ways to Address the Problem after dimissal or other disciplinary range of actions that would subject an Comment: Full enforcement of existing action for misconduct. Among recent individual to action by the Commission rules for vendors who falsify records cases, the NRC has found that some does not differ significantly from the and supply fraudulent parts would individual wrongdoers have gone from range of actions that might subject the better address the problem than the the employment by one licensee to individual to criminal prosecution. Thus, willful misconduct rule. another or sought similar employment there should be no disincentive to Response: There is currently no direct within the industry. Licensees do not properly conscientious workers. If it requirement as to vendors other than always provide future employers the does deter those who would part 21, and that only requires reporting. reason for terminating employees. The intentionally cause a licensee to be in This rule establishes specific Commission believes that effective violation of regulatory requirements, requirements for persons such as deterrence of future threats to safety then the rule achieves its purpose. vendors who engage in deliberate calls for knowing where these Comment: The proposed rule on misconduct or who deliberately submit individuals are so that their employment willful misconduct would interfere with false information. With this rule, the in regulated activities can be closely employer/employee relationships by Commission will be able to take action monitored and, if they are held out of undermining the authority of against vendors who recognize they are these activities for a period, knowing of management and allowing the NRC to servicing nuclear activities and falsify their initial return. The orders dictate employment relations. Discipline records or supply fraudulent parts or contemplated under the deliberate should be left to management. certificates, when such actions are misconduct rule address these concerns. Response: The current Enforcement deliberate. Comment: An individual's awareness Policy, 10 CFR part 2, appendix C, in Comment: In access authorization that his or her misdeed would affect the section V. E., points out the close control procedures, the NRC should provide employer's license and thus the over and limitations on when more guidance or promulgate livelihood of colleagues is a greater enforcement action will be taken against requirements for background deterrent than possible NRC action. individuals. The Commission has no verification, or require disclosure of Response: This awareness desire to infringe on employer/employee orders. presumably exists in the workplace relationships and believes that the today, and is considered beneficial in actions that it might take under the rule Response: These ideas, if adopted, the effort to have licensed activities do not, in fact, interfere with those would only affect reactor licensees, and conducted properly and safely. relationships any more than the existing not the many thousands of people However, wrongdoing does occur. In the practice of directing or confirming the employed by materials licensees, and Commission's view, the threat of direct removal of an employee found to have also would not be adequate to address action against the individual as well as committed wrongdoing or in some way those persons, including corporations against the licensee employer should limiting his or her role in licensed and partnerships, whose involvement in provide more effective deterrence. activities with a given employer. licensed activity must be prohibited or Requiring a former employer who is needs some measure of oversight or

2. Effect on Employment Relationships restriction. Finally, it would not permit called for a reference check to simply Comment: The rule on willful advise the prospective employer that the the fine tuning that can be accomplished misconduct will be a disincentive to NRC has issued an order concerning the through individual orders.

employment in nuclear industries by subject individual does not constitute Comment: Rather than issuing orders creating additional stress on workers interference with the employment to individuals, all that is necessary to and undermining morale. relationship, as that relationship has achieve the NRC's purpose is to Response: The Commission is already ended. For the vast majority of distribute, to all licensees, a list of concerned with the potential for the matters, discipline is left to orders issued to licensees containing perception that the comments raise. management. The NRC will take action restrictions on the activities or However, workers are presumed to only in those relatively rare instances employment of individuals. desire to do their job properly. While where the deliberate misconduct, or Response: This is not sufficiently enforcement action is, and will continue deliberate submission of incomplete or comprehensive to address the full to be, taken against the licensee for inaccurate information, raises concerns spectrum of expected situations and violations of regulatory requirements, about the public health and safety, and would not necessarily preclude the rule does not apply in cases of this is the practice today. potentially dangerous persons from negligence, honest mistake, or engaging in licensed activities. The ignorance. As discussed above, the 3. Effect on Public and Private intention of the Commission is to impose Commission expects to apply individual Expression an obligation directly on the wrongdoer, sanctions only in a very few significant Comment: Two commenters thought and that can be accomplished only or egregious cases. As the rule was that the proposed rule on willful through an order directed to that person. originally proposed, it would be utilized misconduct would interfere with free Further, the cost and other problems only in those cases involving speech, press, and assembly for those associated with periodically distributing willfullness, defined by Commission protesting NRC-licensed facilities. copies of orders to more than 8000 policy as including deliberate actions Response: There is nothing in the materials licensees and thousands of and those violations resulting from proposed (or final) rule that even consultants would be substantial. careless disregard. In light of the addresses, much less impinges upon, an Comment* The rule should be comments received and further individual's right to free speech, freedom modified to apply only to willful consideration of the desirable scope of of the press, or the right to peaceful misconduct that significantly affects the rule, the Commission has modified assembly. The commenters did not public health and safety. 2-SC-93

PART 2

• STATEMENTS OF CONSIDERATION.

Response: The Commission does not proposed rule, that enforcement actions licensees at any time. For personnel believe the rule should be narrowed as against individuals are significant conducting reference checks prior to suggested. However, as described actions that need to be closely hiring, the burden amounts to no more above, the rule has been narrowed to controlled and judiciously applied. To than good business practice. prohibit only deliberate misconduct. this end, the staff will consult with the Comment: One commenter thought it Deliberate misconduct, by itself, raises a Commission before taking action was burdensome on the employer to significant public health and safety directly against unlicensed individuals require him or her to inform inquiring concern. by order, unless the public health and prospective employers of the existence Comment: Three other suggestions safety requires immediate action, and of an order against the former employee were: will consult with the Commission before for an indefinite period of time. (1) Provide Federal trial before issuing a civil penalty against an Response: The only burden on a imposing penalties, unlicensed individual or a licensed former employer is to be aware of (2) Apply the willful misconduct rule reactor operator. However, as noted in whether an employee or former only in cases in which the individual Footnote 4 of the Enforcement Policy, employee is presently subject to an NRC admits misconduct, and civil penalties against individuals are order. Given the small number of orders (3) Set up a defendant support fund not normally issued. Prior notice to the anticipated, it should not pose an undue for counter-suing NRC officials. Commission will be given on Notices of burden on any employer. As to an Response: These suggestions are Violation without civil penalties that are indefinite time, in most cases a specific rejected for the following reasons, issued to unlicensed individuals and time period will be provided in the respectively: actions taken against other unlicensed order. (1) While there is no provision for a persons such as corporations or Comment: Two commenters Federal trial, an administrative hearing partnerships. questioned use of "attitude" of the may be requested. An administrative Further, the rules provide an individual as a factor in determining hearing may be held before or after the opportunity to answer any order issued, action to be taken. effective date of the action, depending giving the subject person prompt input Response: The Commission believes on the circumstances. There is a right to into the process. Subsequently, the that in addressing the issue of future appeal the administrative decision to a person has the right to an administrative involvement of an individual in licensed Federal court for its review. hearing and, if the person is still (2) The rule would be easily thwarted activity, where safety is crucial, it is dissatisfied after the hearing, the matter if it only applied after an individual proper to consider the individual's may be taken to Federal court. Finally, attitude toward compliance with safety admitted the misconduct. there is an existing mechanism for practices and regulations. Recognition (3) This is not permitted under current handling complaints of improper NRC employee behavior, through requests to and admission of past errors indicates a law. more positive attitude than continuing

5. Method of Implementation the NRC Inspector General for investigation. denial or hostility, and thus enhances Comment: Under the proposed Comment: The system envisioned by the Commission's reasonable assurance amendments to part 2, the right to issue the NRC will not work because that licensed activities will be orders and Demands to Show Cause individuals will not reveal the existence conducted in a manner that protects would be extensively delegated, of an order to prospective employers. public health and safety. However, underscoring the potential for abuse. Response: The Commission recognizes "attitude" is only one factor and is not Response: The purpose of delegating that some individuals may not comply controlling in the overall determination the authority to issue orders and with the terms of an order, but believes of appropriate action.

demands, as was stated in the that in many cases a lesson will have Comment: Several commenters Supplementary Information, is to avoid been learned, and the individual will expressed concern that the rule on

• the need to amend the regulations each thereafter comply with requirements. willful misconduct or some of the time the title of one of the currently For those who do not, failure to comply critical terms in its application are enumerated officials is changed. It is the with an order would be a basis for vague, overly broad, too subjective, or intention of the Commission that the possible civil and criminal enforcement create uncertainty or ambiguity in the authority will continue to be delegated action and possibility of such action process. Two of these commenters to essentially the same small group of should increase the degree of maintained that the line between senior officials enumerated in the compliance. In addition, licensees may "careless disregard" and "negligence" is current rule. These officials are also be required to divulge the existence of tenuous; one commenter equated the listed in the Enforcement Policy, under the order during reference checks which terms. A few commenters were section VIII. In addition, as provided in will increase the likelihood that concerned about the definition of the Enforcement Policy and noted in the prospective employers will be aware of "willful misconduct." One commenter next response, the staff will be the issuance of the order. considered the definition of licensed consulting with the Commission before Comment: There will be additional activity to be unw.orkably vague.

acting in many of these cases. costs to employers, such as training and Response: While it is difficult to Comment: Some commenters recordkeeping, in providing past precisely define any of these terms, that expressed concern about widespread employment information. is also true of simple negligence and orders to unlicensed persons, the Response: The rule would only add a other terms used regularly in the law. It potential for abuse by NRC officials and single fact to whatever information is has been held that careless disregard is inspectors, false accusations, and a normally given on any former employ.ee willful, Steinberg 8' Son v. Butz 491 F.2d general apprehension about judicious who was subject to an order that is still 988 (2d Cir. 1974), and the Enforcement application of the willful misconduct in effect. This* information should be in Policy adopts the same standard. rule. the individual's personnel file, so the Willfulness does not include acts that do Response: The Commission burden should be very slight. Of the not rise to the level of careless recognizes, as stated in the statement_of thousands of licensees, this rule would disregard, e.g., violations caused by considerations accompanying the probably affect only a handful of simple error, misjudgment, 2-SC-94

PART 2

• STATEMENTS OF CONSIDERATION miscalculation, ignorance, or confusion Although the final rule provides that a At the time of publication of the revised on the part of the individual. The use of substantive response by a non-licensee Enforcement Policy, public comments on these terms, that are already used in the is not required, failure to respond may the changes are solicited. The enforcement program, should not create lead to issuance of an order that could Commission believes that the limited any uncertainty or ambiguity in the only be challenged through a hearing scope of the rules, combined with the enforcement process. However, because request. If a non-licensee chooses not to statement of considerations published the scope of the proposed rule has been provide a substantive response, the herewith and the views expressed in the narrowed to apply only to deliberate Commission expects that the non- statements of consideration for the acts and not those resulting from licensee will respond by indicating why proposed rule, provide adequate careless disregard, these comments, to the information sought is not being explanation and notice of the changes to the extent that they apply to careless provided and why the Demand should the Enforcement Policy, which are disregard, are no longer applicable. not have been issued. intended simply to provide guidance on Comment: "Willful misconduct" Comment: The rule should provide for the implementation of the rules.

should be redefined to prevent sanctions recovery of costs of an unlicensed entity Comment: Appeal rights should be set for unknowing violations and "careless for responding to a Demand to Show out in the misconduct rule. disregard" should be deleted as it may Cause when it has been determined that Response: The Commission's be subject to misinterpretation. no violation has taken place. regulations have been organized so that Response: Limiting the rule to Response: In meeting its regulatory responsibilities to protect the public standard procedural rules governing a situations of deliberate acts resolves these concerns. health and safety, it is sometimes number of Commission proceedings Comment: Th1nule on deliberate necessary to require information from, appear in one place. Such provisions misconduct fails to recognize the need to and impose obligations on, unlicensed appear in 10 CFR part 2, and include treat individuals differently from persons. See e.g., 10 CFR 21.2. It is not provisions concerning hearing and corporations and under different the practice of the NRC to provide appeal rights. Section 2.700 of subpart G procedures. reimbursement for costs in connection to part 2 is being amended at the same Response: The proposed rule with fulfilling its regulatory functions. time as these final rules on issuance of primarily addresses the conduct of Moreover, as stated previously, a orders and deliberate misconduct, so individuals, but also of vendors. The Demand for Information is an that the Commission's procedural rules Commission sees no need for different opportunity that is provided to an entity, of general applicability, as set forth in rules and believes that the procedures in prior to the institution of an enforcement subpart G, are applicable to an place and as modified by the proceeding, to present information to the adjudication initiated by an order under accompanying changes being made to 10 Commission as to why the Commission § 2.202. This subpart includes CFR Part 2, Rules of Practice for should not initiate an enforcement procedures for an appeal from an initial Domestic Licensing Proceedings and proceeding. If an unlicensed entity decision. Since the Commission's Issuance of Orders, are adequate.

• chooses to not take advantage of this regulations have been organized so that Comment: A few commenters felt that opportunity, a decision whether to the subpart G rules apply to a number of a Demand to Show Cause should initiate the enforcement proceeding will types of adjudications, there is no need include a provision for objecting to the be made without the benefit of that to repeat these procedures in the Demand on grounds ofreasonableness input. substantive rule itself.

or burdensomeness, should describe the Comment: Three commenters were m. The New Regulations material to be produced with such concerned with the length of time that definiteness and certainty as to permit an order would be in effect and sought After careful consideration of all the the material to be fairly identified, and additional information on how an comments received, the Commission has should demonstrate the general individual could redeem himself or modified the rules as proposed by (1) relevance and scope of the information herself to avoid being listed "for life." deleting the term "Demand to Show being sought. The respondent should be Response: As was explained in the Cause", and codifying the use of a entitled to seek additional clarification Supplementary Information to the Demand for Information, while offering and guidance. One commenter felt that proposed rule: "Ordinarily, the (but not requiring) non-licensees the the proposed rule should indicate that a Commission would expect to provide a opportunity to respond to such person responding to a Demand to Show specific time limit for the provisions of demands; (2) clarifying that an answer Cause may satisfy the demand by the order, and a process for relaxation to a Demand for Information consenting making the requested information of the order." Normally the term to the entry of an order constitutes a available for inspection and copying, to specified would not exceed five years. waiver of hearing and certain other avoid excessive and unnecessary Even .if an order were to appear to bar a rights, [3) making the misconduct rule burden to the responding party; it should person indefinitely, and failed to include applicable to a portion of the spectrum also ensure that the time for response is the usual provision that the Regional of willful misconduct, namely deliberate a reasonable one. Administrator could relax its provisions, actions, and not applying it to willful Response: Traditionally the the person could request modification misconduct caused by careless Commission staff maintains open lines by the NRC. disregard, and [4) deleting the last of communication with recipients of Comment: The proposed changes to sentence of the proposed misconduct Demands for Information, so that any the Enforcement Policy should be rule in each of the affected 10 CFR parts. needed clarification can be sought and published for comment before This sentence addressed willful obtained. To facilitate such publication of the final rule on misconduct arising out of activities communications, the staff intends to misconduct. within the jurisdiction of the NRG and include in any Demand the name and Response: The Enforcement Policy is which places in question the NRC's telephone number of an NRG staff not a rule, but a statement of reasonable assurance that licensed contact that the recipient may contact Commission policy. Policy statements activities will be conducted in a manner should he or she have any questions are not as a matter of course published that provides adequate protection to the regarding the Demand. for comment before their effective date. public health and safety, but which does 2-SC-95

PART 2

• STATEMENTS OF CONSIDERATION not in itself result in a violation of NRC requires that certain information be by setting the point at which a requirements. As noted in (3) above, the provided to demonstrate why either a "proceeding" begins for purposes of misconduct rule is now limited to proposed or immediately effective triggering the adjudicatory rights under deliberate misconduct, and the exact action modifying, suspending, or section 189 of the Atomic Energy Act to scope of the rule has been clarified. In revoking a license should not be taken. the point of issuance of an order its final form, it addresses deliberate The order afforded a hearing with compelling a licensee or other person to misconduct by licensees and licensee regard to these actions. While section take or refrain from certain actions employees, and by others who 189 of the Atomic Energy Act provides rather than the point where the agency knowingly provide goods or services for the granting of a hearing in merely demands information to show relating to a licensee's activities subject connection with proceedings to modify, why no action should be taken. The to NRC regulation, when that suspend, or revoke a license, neither the change in practice is consistent with the misconduct causes or, except for Atomic Energy Act nor the Commission's power to define the scope detection, would have caused a licensee Administrative Procedure Act requires a of its proceedings. See Bellotti v. NRG, to be in violation of an NRC hearing in connection with a Demand 725 F.2d 1380 (D.C. Cir. 1983).

requirement. In this context, it includes for Information that requires only the an intentional act or omission that the . In order to avoid unnecessary submission of information, but does not person knows would cause a licensee to by its terms modify, suspend or revoke a duplication in the regulations, the prior be in violation of any rule or regulation § 2.204, "Order for modification of license. More recently the staff has been or other NRC requirement, or that the using Demands for Information that seek license," is deleted from part 2, since person knows constitutes a violation of information to determine whether an procedures for modification of a license a requirement or policy of a licensee, enforcement action should not be taken. are included in the new § 2.202. contractor or subcontractor. It also The 1954 Act does not explicitly set Section 2.202 provides that if the addresses the deliberate submission to out the form or requirements for an licensee or other person to whom an the NRC, a licensee, or a contractor, of Order to Show Cause or a Demand for order is issued consents to its issuance, information that the person knows to be Information. The 1954 Act does, or the order confirms actions agreed to incomplete or inaccurate in some however, authorize the Commission to by the licensee or such other person, respect material to the NRC. Other collect information pursuant to sections that consent or agreement constitutes a minor changes, of a purely editorial 161 c and o, to carry out its waiver by the licensee or such other nature, also were made. responsibilities and the Commission person of a right to a hearing and any A. Revisions to Procedures to Issue may issue show cause orders or associated rights. These consent orders Orders Demands for Information to implement will be effective on issuance. This is not this authority. Section 182 of the Act a departure from current Commission The final rule revises § 2.202 to practice, but merely conforms the establish a mechanism to issue orders authorizes the Commission to request information from licensees and the Commission's regulations to this both as to a licensee and to any person practice. Section 2.202(d) also provides subject to the jurisdiction of the Commission has implemented this authority by promulgating regulations that the licensee's or other person's Commission, when necessary to protect agreement to an order must be in public health and safety or to minimize such as 10 CFR 50.54(£). Licensees danger to life or property or to protect subject to Commission requests under 10 writing. This provision is intended to CFR 50.54(£) or its equivalent in other minimize the possibility of issuance of a the common defense and security. Such confirmatory order (i.e., an order a person includes, but is not limited to, a parts of the NRC's regulations have no hearing rights under the 1954 Act intended to confirm and bind a licensee person who held a license or who was to its commitments to certain actions) otherwise engaged in licensed activities regarding these information requests. Accordingly, to clarify that hearing which does not accurately reflect the at the time of the conduct in question, but who no longer holds a license or is rights do not attach to mere demands for agreement reached by the parties. the submission of information, the Whether or not the licensee or other so engaged. person consents to an order, other In addition, the procedural mechanism Commission is removing its provisions for issuing Demands for Information to on Orders to Show Cause from the persons adversely affected by an order licensees and other persons is set forth Commission's general ordering authority issued under § 2.202 to modify, suspend in a separate section in order to make it contained in § 2.202. To avoid any or revoke a license will be offered an clear that the right to a hearing does not confusion with orders under revised opportunity fqr a hearing consistent attach at the time of issuance of a mere § 2,202, the Commission is codifying the with current practice and the authority Demand for Information, i.e., a demand use of a document called a "Demand for of the Commission to define the scope of that a person or licensee provide the Information", and provisions concerning the proceeding on an enforcement order. Commission with information that will these demands are set forth in a new See Bellotti v. NRG, 725 F.2d 1380 (D.C. be evaluated before the Commission § 2.204. Under the rule, as in the past, a Cir. 1983). The Commission will continue determines whether to initiate an Demand for Information will be issued to publish orders in the Federal Register ' enforcement action. *only to require the submission of in accordance with current practice. Orders, including Orders to Show information. If a Demand for The final rules consistently vest Cause, have been issued under section Information is issued as part of an order authority to issue orders in the 161 of the Atomic Energy Act of 1954, as requiring action pursuant to § 2.202, Commission, leaving it to the amended, as implemented by § § 2.202 hearing rights will be offered but only Commission's internal authority to (order to show cause), and 2.204 (order with respect to the provisions of the delegate such authority to others. This for modification of license). In addition, order requiring action. This revision to avoids the need to amend the civil penalty orders are issued under the regulations governing orders regulations each time the title of one of section 234, implemented by § 2.205 changes the rule in Dairyland Power the previously enumerated officials is (civil penalties). In the past, NRC Cooperative, LBP-80-26, 12 NRC 367, changed, and removes the unnecessary practice had been to issue a single 370-72 (1980) and Consumers Power limitation on the EDO's authority to order, an Order to Show Cause, which Company, CLl-73-38, 6 AEC 1082 (1973), issue orders only in emergency 2-SC-96

PART 2

• STATEMENTS OF CONSIDERATION situations. See section VIII of the is focusing on those acts that are the which the NRC believes that deliberate Enforcement Policy. more serious and in which there is a misconduct has occurred.

The Commission is retaining, in new greater and more obvious need for The final rule requires that the person

§ 2.202[a)(5), a provision that, upon a     regulatory action in order to protect the  must knowingly supply or provide goods finding that the public health, safety or    health and safety of the public. This will  or services that relate to activity subject interest so requires or that the violation   reduce the number of instances in which     to NRC regulation. This does not mean is willful, the proposed action may be       these sanctions should be applied and       that the person must be familiar with 10 made immediately effective, pending          will eliminate, for purposes of the rule,   CFR so that it would be a defense to a further proceedings on the order. A          cases in which the conduct, e.g.,           citation that the person did not know in similiar provision appears in the current    negligence or careless disregard, is        fact that a particular regulation or
§ 2.202[f) and § 2.204. Relief from the     difficult to characterize and thus more    requirement either generally or requirements of an immediately               often a matter of dispute.                  specifically was involved. The focus is effective order, on the other hand, may         Concerning the second change from        on the word "relate." The person must be sought under the relaxation               the proposed rule, misconduct that is      know that the end use is nuclear and provisions contained in that order, or by    within NRC jurisdiction but does not       that there may be some safety nexus.

motion to the Atomic Safety and cause a violation of requirements, in The standard is the knowledge of the Licensing Board or the Presiding Officer view of the comments expressing reasonable person engaged in the if a hearing has been requested. In concern in this area and the fact that the activity applying the facts known to the addition, the Commission has initiated a NRC has in the past been presented person. rulemaking to provide for expeditious with infrequent instances of such For example, in the case of power consideration of challenges to orders activity, that portion of the proposed reactors, the Commission would that are made immediately effective. rule has been deleted. Instead, the final conclude that a person knows a product "Revisions to Procedures to Issue rule contains a prohibition on deliberate relates to NRC regulated activities if the Orders: Challenges to Orders that are misconduct by licensees, licensee equipment or service supplied or Made Immediately Effective," [55 FR employees, and others who knowingly provided affects structural supports, 27645; July 5, 1990). provide goods or services that relate to a The final rule also continues, in licensee's activities subject to NRC control systems, electrical generation,

§ 2.202[e), the backfitting requirements steam supplies, fluid boundary and regulation, when that misconduct would of § 50.109 as to part 50 licensees,         have caused a violation, except for        similar activities where a reasonable including the provision therein that         detection. This more limited provision     person would recognize that there is a when immediately effective action is         reaches those individuals who              potential for safety significance. Thus, a required, the documented evaluation          deliberately set in motion events that     person providing such things as piping, may follow, rather than precede, the         would cause a violation if not otherwise   electrical equipment, chemicals, regulatory action.                           checked. An individual acting in this      computer services, consulting services, Finally, consistent with the changes to   manner has the requisite intent to act in  and welding services to be performed at

§ § 2.202 and 2.204, § 2.1 is amended to . a wrongful manner such that application or delivered to a nuclear power plant specify that the scope of part 2 includes of enforcement sanctions may be would meet the test. Clearly, if the the issuance of orders and demands for warranted. In addition, the final rule purchase order is subject to part 21 or information to unlicensed persons; prohibits deliberate submission of appendix B of part 50 a person supplying § 2.201 is amended to emphasize the information that the person knows to be the product would be covered. On the discretionary aspect of enforcement incomplete or inaccurate in some other hand, a person providing piping or such that a notice of violation may be respect material to the NRC. electrical equipment to a warehouse of a issued in response to an alleged Examples of application of the "but utility that has both nuclear and non-violation, to delete the provision for for detection" provision include: A nuclear plants who has no indication issuing a notice of violation prior to an disgruntled operator deliberately opens that the purchase is for the nuclear plant order because the essence of a notice of a valve that causes a release, but the or nuclear activity would not, without violation is contained in an order or supervisor detects it before a violation more information, have the required Demand for Information, to specify that actually occurs; a radiographer, in a knowledge. Similarly, a person a Demand for Information may be hurry and believing that no one is in the providing food service, secretarial issued if an adequate reply is not vicinity, sets up for a shot without supplies, or landscaping services to a received to a notice of violation, and to surveying or posting the radiation area, nuclear plant is not covered by the rule substitute "order" for "order to show but just before exposing the source a because a reasonable person would cause;" § 2.700 is amended to specify fellow employee arrives and corrects the recognize that those activities are not that subpart G [Rules of General situation; a worker falsifies an related to regulated activities. However, Applicability) applies to all inspection record concerning a person providing equipment adjudications initiated by an order; and manufacture of a component, but the commercial grade or for balance of plant the heading of part 2 is changed to falsification is caught by a QC inspector. would not be excused from compliance reflect the fact that it covers the The focus on deliberate misconduct in with this provision if adequate notice issuance of orders. the final rule should not be construed to has been provided that the equipment is condone other unacceptable conduct by going to a nuclear plant. B. Deliberate Misconduct by Unlicensed a person that causes a violation. In Similarly, for materials suppliers, it is Persons cases involving non-deliberate conduct, enough to meet the "knowingly" This final rule addresses only action against the individual may be requirement if the person knows that the deliberate misconduct that causes or, more appropriately handled within tlie part in question is to be used in but for detection, would cause, a licensee's remedial program. In those controlling a teletherapy device in licensee to be in violation of a cases, the Commission will continue to radiation treatment, or knows that the Commission requirement, and deliberate take action if appropriate against the product is a container for a sealed submission of materially incomplete or licensee. Cases addressed in this source ofradioactive material or a inaccurate information. The Commission rulemaking are significant matters in container to ship that material. Other 2-SC-97

PART 2

• STATEMENTS OF CONSIDERATION examples include provision of companies that provide testing services for doing so. These orders could also consulting services that permit a and whose employees deliberately direct the licensee to advise any company to obtain a license or supply false data to a licensee in an prospective employer conducting performance of an audit that assists a effort to convince the licensee that the licensed activities, who inquires about licensee in managing its operations. product meets 10 CFR part 50, appendix the past employment of the wrongdoer, In these instances, a reasonable man, B; vendors whose deliberate false of the issuance and publication of the knowing where the product is going, certification causes a licensee to acquire removing or confirming order. These would know that it relates to regulated components that do not meet license latter requirements may be appropriate activity. Specific knowledge of the requirements, such as the ASME code, because, while the NRC has preferred license or 10 CFR is not required. What where required; and companies that not to be involved in licensees' is required is knowledge that the supply components or other items employment decisions, it has become activity for which the product is sold is knowing that the certificates of apparent that licensees need more an activity regulated by the NRC. compliance are false. In these cases, complete background information about A situation in which it might be depending on the circumstances, an prospective employees to make better appropriate to issue an order to an order might be issued to the contractor employment decisions. Often, checking unlicensed individual is the case of an or vendor, prohibiting use of a service, previous employment can be thwarted employee of a licensee who deliberately product, or component in licensed because employers are reluctant to causes that licensee to be in violation of activities, or to the employee who had divulge to prospective employers any Commission requirements. Examples of deliberately committed the misconduct, derogatory information about former such a situation include: a radiographer prohibiting that employee's involvement employees, due to state laws and fear of deliberately fails to conduct surveys or in licensed activities. tort liability. Similar restrictions have lock the source after exposures; an Depending on the circumstances of been adopted in a final rule of the auxiliary operator at a nuclear power these types of cases, it might be Federal Railroad Administration (54 FR plant deliberately falsifies log sheets to appropriate to issue an order to the 42894; October 18, 1989).

reflect checks that were not, in fact, person, which may be a corporation or In deciding when to issue an order to performed; a nuclear medicine individual, either prohibiting the person an unlicensed person rather than the technologist, although he or she from being involved in NRC licensed licensee, the NRC recognizes that performs the daily constancy check of activities, conditioning the person's judgments will have to be made on a the dose calibrator on weekdays, involvement in those activities, or case by case basis. However, in making deliberately does not bother with the requiring the person to provide prior these decisions, the NRC will consider check when doing procedures on notice to the Commission before factors such as the following: weekends, when he or she uses an engaging in licensed activities in the

1. The level of the individual within unchecked calibrator to prepare patient future. The provision for prior notice the organization.

doses. As a result of that individual's will permit the Commission to evaluate action, the Commission might no longer whether it needs to issue an additional 2. The individual's training and order to prohibit or condition the experience as well as knowledge of the have reasonable assurance that requirements necessary to protect the person's involvement in licensed potential consequences of the public health and safety would be activities or to determine whether wrongdoing. followed if that individual were to increased inspection effort is needed. In 3. The safety consequences of the continue to engage in activities within addition, the order might require the misconduct. the Commission's jurisdiction. person to inform future employers 4. The benefit to the wrongdoer, e.g., Another example of a situation where licensed by the Commission of the personal or corporate gain. an order to an individual might be existence of the order. This would 5. The degree of supervision of the appropriate is the case of an unlicensed provide some assurance that, should the individual, i.e., how closely is the individual who deliberately provides an person be employed to perform licensed individual monitored or audited, and the inspector, investigator, or other NRC activities in the future, the new likelihood of detection (such as a employee with inaccurate or incomplete employer would be aware of the radiographer working independently in information on a matter material to the person's past conduct and ensure that the field as contrasted with a team Commission's regulatory appropriate oversight is in place. Some activity at a power plant]. responsibilities. Additional examples of these conditions have been used by 6. The employer's response, e.g., include a supervisor who discharges an the Commission in settlement of disciplinary action taken. employee for raising safety concerns, a litigation in accordance with 10 CFR 7. The attitude of the wrongdoer, e.g., company officer who directs employees 2.203. Edward Hines, Jr. Medical Center, admission of wrongdoing, acceptance of to provide false information to the NRC, ALJ-88-2, 28 NRC 477 (1988), and Finlay responsibility. an employee who deliberately falsifies Testing Laboratories, Inc., LBP-88-17, 27 8. The degree of management records of required information, an NRC 586 (1988). responsibility or culpability. employee who deliberately defeats As a supplement to an order to an 9. Who identified the misconduct. alarms that have safety significance, a individual, the Commission might also The orders described above would be person who deliberately submits false order the facility licensee to remove the issued only for deliberate misconduct information to a power reactor licensee individual from licensed activities. This that bears on the person's ability to to demonstrate that a component has would provide additional assurance that carry out health or safety-related been manufactured to a QA program or the individual is actually removed. If the responsibilities. In most cases, the order has specified characteristics, and a licensee has already removed the would require the person to divulge the person who deliberately submits false wrongdoer, the NRC could issue an

• existence of the order to a prospective information to a power reactor licensee order to the licensee confirming the employer or customer involved in and as a result is granted unescorted removal and requiring the licensee to licensed activities. Ordinarily, the access. notify the NRC if the licensee desires to Commission would expect to provide a Other examples of potential use the individual in licensed activities specific time limit for the provisions of application of the rule include in the future, and to provide the basis the order, and a process for relaxation 2-SC-98

PART 2

• STATEMENTS Of CONSIDERATION of the order. These orders will be Orders, including orders imposing that the action was improper and it subject to the procedures and hearing civil penalties, are published in the related to an activity associated with rights of 10 GFR part 2. Federal Register and NUREG--0940 licensed activity, e.g., the person knew a Issuance of the orders described (Enforcement Actions: Significant component was being procured for above will have the benefit of making Actions Resolved), and are usually the eventual use in a nuclear power plant or the NRG aware of the person's future subject of a press release. In addition, for use in a radiographic camera. Thus, involvement in licensed activities for the the Commission intends to establish a it is not a defense that the person did time specified in the order. This will system of records that will include a list not know the actual requirement being assist in conducting inspections and of all persons currently subject to an violated and therefore the person would making licensing decisions as to order that affects their participation in not know the actions were wrong.

licensees who may be employing licensed activities. The NRC intends to The NRC Enforcement Policy individuals who have been subject to send a list and copies of all currently currently requires that all enforcement enforcement action. It will also provide effective orders to all power reactor actions involving unlicensed individuals, future employers involved in licensed licensees twice a year. This compilation and licensed individuals pursuant to 10 activity the opportunity to make will be made available to other CFR Part 55, be approved by a Deputy informed employment decisions, licensees and members of the public on Executive Director. The staff will provided that the person complies with request. consult with the Commission before the terms of the order and informs the The Commission believes that these issuing a civil penalty or order to an NRC and new employer, as required. If actions will provide greater assurance unlicensed individual or issuing a civil the person does not comply with the that licensees will be aware of persons penalty to a licensed reactor operator terms of the order, the failure to do so, who have been the subject of an NRG pursuant to 10 CFR part 55. 2 Prior notice when identified, may subject the enforcement order. These actions should will be given to the Commission on offender to a civil penalty or could be provide better accountability for Notices of Violation without civil referred to the Department of Justice for employees, consultants, contractors, and penalties that are issued to unlicensed criminal prosecution. vendors in the nuclear industry and thus individuals and enforcement actions In sum, orders to unlicensed persons improve the quality of performance, and taken against other unlicensed persons, may include requirements such as: therefore, the protection of the public such as corporations or partnerships.

1. A prohibition against any health and safety. Use of these orders Enforcement actions against unlicensed involvement in NRG-licensed activities, should also serve as an effective persons, as with other NRC enforcement generally for a specified period of time. deterrent to wrongdoers and inadvertent actions, require the exercise of (In the case of a corporation, this could employment of wrongdoers throughout discretion and will be taken dependent mean not being allowed to supply the regulated industry. Adoption of on the circumstances of the case.

services or components.) these regulations will not alter the 2, A prohibition against any NRC's procedures for referring certain While the proposed rule indicates the involvement in NRG-licensed activities alleged or suspected criminal violations staffs intention to implement the until certain conditions are satisfied, of the Atomic Energy Act to the authority to take enforcement action, e.g., completing specified training or Department of Justice for appropriate including assessing civil penalties, meeting certain qualifications. action. against unlicensed individuals, and the

3. A requirement to notify the NRC It would be an erroneous reading of Commission believes it appropriate to before resuming work in licensed the final rule on deliberate misconduct have a civil penalty sanction available activities. to conclude that conscientious people as an option for unlicensed persons, it is

4. A requirement to tell a prospective may be subject to personal liability for recognized that the normal sanction for employer or customer engaged in mistakes. The Commission realizes that unlicensed individuals who deliberately licensed activities that the person has people may make mistakes while acting cause violations would be an order been subject to an NRC order. in good faith. Enforcement actions removing the individual from licensed Orders to licensees who are directly against individuals are not to be activities. As stated in the Enforcement employers or former employers of used for activities caused by merely Policy (at footnote 4), "Except for individuals subject to orders may negligent conduct. These persons should individuals subject to civil penalties include requirements such as: have no fear of individual liability under under section 206 (concerning

1. Removal of an individual from this regulation, as the rule requires that noncompliance by vendors) of the licensed activity. there be deliberate misconduct before Energy Reorganization Act of 1974, as

2. A requirement for retraining certain the rule's sanctions may be imposed. amended, NRC will not normally impose individual(s), as a condition of allowing The Commission recognizes, as stated in a civil penalty against an individual."

the person to continue in licensed Section E, "Enforcement Actions IV. Enforcement Policy activities. Involving Individuals," of the NRC

3. A requirement to advise any Policy and Procedure for Enforcement The Commission is also publishing licensee who, as a prospective Actions; Policy Statement, 10 CFR part concurrently with these new rules the employer, inquires about an individual, 2, appendix C (1989), that enforcement Enforcement Policy with changes that of the existence of any order issued to actions involving individuals are have been adopted to reflect the new the individual. significant actions that need to be rules. Revisions to the Policy now being

4. A requirement to notify the NRC if closely controlled and judiciously made are described in the following the employer rehires or restores the applied. The Policy also states that paragraphs. Only the sections to which individual to licensed activity, and to action will not be taken against an . changes were made are discussed here.

state the basis for so doing. individual if the improper conduct was

5. A requirement for additional caused solely by management failures. 2 Consultation with the Commission does not oversight or independent verification of While it is not necessary for the preclude the staff from taking immediately effective activities performed by the person, if the person to know that a violation would action under exising regulatory provisions where necessary to protect health end safety, e.g.,

person is to continue to be involved in occur because of his or her action, it is suspending a license and ordering radioactive licensed activities. netessary that the person recognized sources to be removed. 2-SC-99

PART 2

• STATEMENTS OF CONSIDERATION The numbering of the items discussed has been modified to reflect terms used Regulatory Analysis tracks the section and paragraph as a result of this change to part 2. The Table is modified to indicate that a A. Revisions to Procedures to Issue numbers used in the Policy Statement. Orders repeat Severity Level llI violation may I. Introduction and Purpose also result in a Demand for Information, The previously existing regulations in In this section the reference to if not an Order. 10 CFR 2.202 authorized the NRC, licensees and vendors has been through its designated officials, to expanded to include "others within V.E. Enforcement Actions Involving Individuals institute a proceeding to modify, NRC's jurisdiction" in order to cover suspend, or revoke a license by service unlicensed persons. In this section, the reference to the of an order to show cause on a licensee.

H.B. Procedural Framework NRC being "satisfied" has been The regulations, as previously written, substituted for "little doubt" to more did not provide procedures for the NRC This section has been changed to precisely state the standard for taking to take direct action against unlicensed reflect the new content of 10 CFR 2.202, enforcement action. Also, examples persons whose deliberate misconduct concerning orders, and 10 CFR 2.204, have been added to indicate the types of causes a licensee to violate Commission concerning Demands for Information. It violations that might cause the NRC to requirements, although such action is describes who must respond to orders take enforcement action against authorized by the Atomic Energy Act of and demands, and also notes that unlicensed persons, particularly hearing rights apply only to orders. 1954, as amended. The rules will make individuals. Other examples are added the Commission's Rules of Practice more IV. Enforcement Conferences to indicate the types of orders that might consistent with the Commission's be issued and the requirements that they existing statutory authority and provide This section is revised to reflect would impose. New language points out enforcement actions taken against the appropriate procedural framework that an order or civil penalty against an to take action, in appropriate cases, in unlicensed persons. New language unlicensed individual must be approved provides that an opportunity to attend order to protect the public health and by the Commission. safety. The rules also will make clear an enforcement conference will normally be provided when NRC VIII. Responsibilities that hearing rights do not attach to proposes to take an enforcement action documents which request only the A new item (5) is added to the list of submission of information, consistent against an unlicensed individual. matters in which the staff is required to with section 169 of the Atomic Energy V. Enforcement Actions consult with or provide notice to the Act of 1954, as amended, and the In this section, the description of Commission. Administrative Procedure Act. elevated enforcement actions is changed IX. Enforcement Actions Against Non- B. Deliberate Misconduct by Unlicensed to include orders addressed to Licensees Persons unlicensed persons. This section has been renamed from The Nuclear Regulatory Commission V.B. Civil Penalty "Vendor Enforcement" and language has statutory authority to issue Table 1A, setting out base civil added to the first paragraph to reflect enforcement actions against unlicensed penalties, is modified in one line to the additional persons against whom persons whose deliberate misconduct reflect the scope of the new rules. In line actions may be taken under these new causes a licensee to be in violation of f "Contractors and Vendors" are added rules. the Commission's requirements. As t~ "Industrial Users of Material." The V. Procedural Actions previously written, the Commission's Supplementary information t? ~e . regulations did not specifically proposed rule indicated that m lme J, Environmental Impact: Categorical implement that statutory authority and "Other Material Licensees", the words Exclusion provide for issuance of these actions. In "and other persons subject to NRC the past, the Commission has issued With respect to the amendments to jurisdiction" would be added. This . . part 2, the NRC has determined that the orders to holders of licenses directing change is not being made because CIVll removal of wrongdoers from licensed penalties normally are not intended to rules are the type of action described in categorical exclusion 10 CFR 51.22(c)(1). activities. However, this approach did be proposed for individuals. Should a not satisfy concerns about wrongdoers With respect to the amendments to parts civil penalty be proposed for an 30, 40, 50, 60, 61, 70, 72, 110 and 150, the who may be hired by others in the individual, the amount will be NRC has determined that the rules industry, without knowledge of the prior determined based on the circumstances. wrongdoing, or who are rehired by the relate to enforcement matters and, V.C. Orders therefore, fall within the scope of 10 CFR former employer, in those instances 51.10(d). Therefore, neither an where no order was issued. The discussion of the use of orders is expanded to reflect orders to unlicensed environmental impact statement nor an The Commission is concerned about a individuals when NRC has identified environmental assessment has been number of incidents of deliberate deliberate misconduct that causes, or prepared in connection with the wrongdoing in recent years in which it but for detection would have caused, a issuance of the final rules. has been limited in its ability to address licensee to be in violation of an NRC the problem directly or to have some Paperwork Reduction Act Statement control over the activities of the requirement, or the deliberate submission of inaccurate or incomplete This final rule does not contain a new wrongdoer in the near term. While the information that is material to the NRC. or amended information collection

• number of cases of deliberate requirement subject to the Paperwork misconduct of which the NRC is aware V.D. Escalation of Enforcement Reduction Act of 1960 (44 U.S.C. 3501 et is not large, any number is unacceptable Sanctions seq.). Existing requirements were and the potential for injury is serious The description of examples of approved by the Office of Management enough that the problem must be enforcement action that might be taken and Budget approval number 3150-0136. addressed.

2-SC-100

PART 2

• STATEMENTS OF CONSIDERATION The objective of the rule is to put orders applicable to individual List of Subjects everyone subject to the Commission's wrongdoers and distribute, twice a year.

jurisdiction on notice that enforcement to all power reactor licensees, a copy of 10CFRPart2 action might be taken against them for the list of currently effective orders that Administrative practice and deliberate misconduct or deliberate restrict individuals from licensed procedure, Antitrust, Byproduct submission of incomplete or inaccurate activities and copies of those orders. material, Classified information, information, in relation to NRC licensed The same material will be available to Environmental protection, Nuclear activities. Under section 234 of the others who request it. The cost of materials, Nuclear power plants and Atomic Energy Act, the Commission distributing this information is relatively reactors, Penalty, Sex discrimination, may impose civil penalties on any small. Source material, Special nuclear person who violates any rule, regulation, In light of the benefits of enabling the material, Waste treatment and disposal. or order issued under any one of the NRC to use its statutory authority to enumerated provisions of the Act, or address directly the deliberate 10 CFR Part 30 who commits a violation for which a misconduct of unlicensed persons, it is Byproduct material, Criminal penalty, license may be revoked. The appropriate that the Commission adopt Government contracts, enforcement actions that may be taken, this rule. including orders limiting activities of Intergovernmental relations, Isotopes, The rules constitute the preferred Nuclear materials, Radiation protection, wrongdoers in the future and civil course of action and the cost involved in penalties, will serve as a deterrent to Reporting and recordkeeping its promulgation and application is requirements. others throughout the industry. necessary and appropriate. The The alternatives available to the foregoing discussion constitutes the 10 CFR Part 40 Commission are to promulgate a rule, as regulatory analysis for these rules. is done herein, or do nothing. Given the Criminal penalty, Government existence of these incidents, and the Regulatory Flexibility Certification contracts, Hazardous materials-potential harm to the public as well as transportation, Nuclear materials, individuals working in NRC licensed In accordance with the Regulatory Reporting and recordkeeping activities, the alternative of doing Flexibility Act of 1980, 5 U.S.C. 605(b), requirements, Source material, Uranium. nothing was rejected. The benefits of the Commission certifies that the rules do not have a significant economic 10 CFR Part 50 taking enforcement action are similar to those of taking action against licensed impact on a substantial number of small Antitrust, Classified information, entities, in that a civil penalty and entities. The rules establish the Criminal penalty, Fire protection, attendant adverse publicity encourage procedural mechanism to issue orders Incorporation by reference, future compliance, the Notice of and demands for information to Intergovernmental relations, Nuclear Violation calls for precise response as to unlicensed persons in addition to power plants and reactors, Radiation corrective action taken, and an licensed persons, who were previously protection, Reactor siting criteria, enforcement order, if obeyed, will covered. In addition, the rules put Reporting and recordkeeping directly control the involvement of an unlicensed persons on notice that they requirements. individual in licensed activity. The may be subject to enforcement action if effect of having these options available they deliberately cause a licensee to be 10 CFR Part 60 in the enforcement program should in violation of Commission requirements. The rules, by themselves, Criminal penalty, High-level waste, reduce the probability of repetitive Nuclear power plants and reactors, violations by wrongdoers. do not impose any additional obligations on entities, including any Nuclear materials, Reporting and The NRC does not anticipate that recordkeeping requirements, Waste additional investigations will be regulated entities, that may fall within the definition of "small entities" as set treatment and disposal. necessary to implement the rule because it focuses on the results of forth in section 601(3) of the Regulatory 10 CFR Part 61 investigations. The NRC estimates that Flexibility Act, or within the definition of "small business" as found in section 3 Criminal penalty, Low-level waste, fewer than five cases per year will Nuclear materials, Reporting and actually result in enforcement action of the Small Business Act, 15 U.S.C. 632, or within the Small Business Size recordkeeping requirements, Waste being taken against unlicensed Standards found in 13 CFR part 121. Any treatment and disposal. individuals. The actual numbers will depend on the performance of obligations would not be created until 10 CFR Part 70 individuals in the industry. The cost of an order is issued, at which time the preparing and publishing a very few person subject to the order would have Criminal penalty, Hazardous additional actions per year beyond the a right to a hearing in accordance with materials-transportation, Material current workload of handling more than the regulations. control and accounting, Nuclear a hundred escalated enforcement materials, Packaging and containers, Backfit Analysis Radiation protection, Reporting and actions per year is not significant. The rule will be implemented by These rules do not involve any new recordkeeping requirements, Scientific processing, in the same manner as other provisions that would impose backfits equipment, Security measures, Special escalated enforcement actions, those as defined in 10 CFR 50.109(a)(1). nuclear material. cases of deliberate misconduct that Accordingly, a backfit analysis pursuant 10 CFR Part 72 come to the agency's attention. The to 10 CFR 50.109(c) is not required for Commission will be consulted on these rules. However, issuance of orders Manpower training programs, Nuclear actions that involve orders or civil pursuant to these regulations may materials, Occupational safety and penalties against unlicensed individuals. involve backfit considerations, which health, Reporting and recordkeeping The Office of Enforcement intends to will be addressed on a case-by-case requirements, Security measures, Spent maintain a list of those enforcement basis. fuel. 2-SC-101

PART 2

• STATEMENTS OF CONSIDERATION 57FR4152 10 CFR Part 110 necessary to restore the text of * *. Published 2/4/92 appendix C, supplement 1, paragraph c'.9 Effective 2/4/92 Administrative practice and that was added in the July 15, 1991, final procedure, Classified information, rule and to correct the paragraph Criminal penalty, Export, Import, 10 CFR Parts 2 and 15 designation of the paragraph added in lncorpora tion by reference, the August 2, 1991, policy statement. RIN 31SO-AE14 Intergovernmental relations, Nuclear materials, Nuclear power plants and EFFECTIVE DATE: August 2, 1991. Revisions to Procedures to Issue reactors, Reporting and recordkeeping FOR FURTHER INFORMATION-CONTACT: Orders requirements, Scientific equipment. James Lieberman, Director, Office of AGENCY: Nuclear Regulatory 10 CFR Part 150 Enforcement, U.S. Nuclear Regulatory Commission.

Commission, Washington. DC 20555, Criminal penalty, Hazardous ACTION: Final rule. Telephone (301) 492-0741. materials-transports tion, Intergovernmental relations, Nuclear

SUMMARY

The Nuclear Regulatory materials, Reporting and recordkeeping Commission (NRCJ is amending its requirements, Security measures, Source regulations to conform several sections material, Special nuclear material. in 10 CFR parts 2 and 15 to the changes 56 FR55991 in part 2 contained in the final rule VI. Final Rules Published 10/31/91 "Revisions to Procedures to Issue Effective 12/2/91 For the reasons set out in the Orders: Deliberate Misconduct by preamble and under the authority of the Material Control and Accounting Unlicensed Persons," which was Atomic Energy Act of 1954, as amended, Requirements for Uranium Enrichment effective September 16, 1991 (56 FR the Energy Reorganization Act of 1974, Facilities Producing Special Nuclear 40678; August 15, 1991).

as amended, and 5 U.S.C. 552 and 553, Material of Low Strategic Significance EFFECTIVE DATE: February 4. 1992. the NRC is adopting the following FOR FURTHER INFORMATION CONTACT: amendments to 10 CFR parts 2, 30, 40, See Part 74 Statements of Mary E. Wagner, Office of the General 50, 60, 61, 70, 72, 110 and 150. Consideration Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555. telephone (301) 492-4976. 56 FR51321 SUPPLEMENTARY INFORMATION: The final Published 10/11/91 56FR61352 Published 12/3/91 rule, "Revisions to Procedures lo Issue Effective 8/2/91 Orders; Deliberate Misconduct by Effective 6/20/91 Unlicensed Persons", 56 FR 40664 10CFR Part2 Standards for Protection Against (August 15, 1991), contained revisions to Radiation; Correction 10 CFR para 2 that, in part. removed the Polley and Procedures for provisions on orders to show cause from Enforcement Actions; Polley See Part 20 Statements of the Commission's general ordering Statement, Correction Consideration authority contained in § 2.202, and AGENCY: Nuclear Regulatory substituted "order" fot "order to show cause" in § 2.201. It also revised § 2.202 Commisaion. 56 FR64943 to establish a mechanism to issue orders ACTION: Policy statement: correction, Published 12/13/91 both lo licensees (as the previous rules Effective 1/13/92 had done) and to any person subject lo

SUMMARY

This action corrects the Commission's statement of policy and Nuclear Power Plant License Renewal the jurisdiction of the Commission, procedure for NRC enforcement actions when necessary to protect public health codified as appendix C to 10 CFR part Z. See Part 54 Statements of and safety or to minimize danger to life On August 2, 1991 (56 FR 36996), the Consideration or property or to protect the common Nuclear Regulatory Commission defense and security.

published ~policy statement in_the ___ . There are a small number of sections Federal Register that modified the in the Commission's regulations where Commission's Enforcement Policy to conforming changes consistent with the add an additional example to the new rule were not accomplished. Reactor Operations Supplement Specifically, H 2.702, 2.1201 and 15.29 involving maintenance related continue to refer to an "order to show violations and to delete the civil penalty cause," although such an order is no adjustment factor for violations longer specifically defined in new involving maintenance deficiencies. This Subpart B of 10 CFR Part 2. These document inadvertently replaced an sections have been revised so that example that was"added to the Reactor "order" is substituted for "order to show Operations Supplement involving a cause", and "order for modification of lic~nsed operator's confirmed positive license" is 1*eplaced by "order" in drug test by a final rule published on I 2.1201. A IJ'eference to "demand for July 15, 1991 (56 FR 32_066). Thi~ action is information" is added to § 15.29 to clarify that either an order or a demand for information may be issued before a suspension or revocation. Accordingly,

                                                                                         § § 2.702. 2.1201, and 15;29 are being revised to conform to the new rule that became effective on September 16, 1991.

2-SC-102

PART 2

• STATEMENTS OF CONSIDERATION Because this is en amendment dealing Rockville, MD between 7:45 a.m. to 4:15 wHh agency practice and procedures, p.m., Federal workdays.

the notice and comment provisions of Copies of comments may be examined the Administrative Procedure Act do not at the NRC Public Document Room, 2120 apply pursuant to 5 U.S.C. 553(b)(A). L Street, NW. (Lower-Level), The amendment is effective upon Washington, DC. publication in the Federal Register. FOR FURTHER INFORMATION CONTACT: Good cause exists to dispense with the James Lieberman, Director, Office of usual ~ay delay in the effective date 57FR5791 Enforcement, U.S. Nuclear Regulatory because the amendment is of a minor Published 2/18/92 Commission, Washington, DC 20555 and administrative nature consisting of Effective 2/18/92 (301-504-2741). conforming amendments to an existing Comment period expires 4/3/92 SUPPLEMENTARY INFORMATION: procedural rule. Background Environmental Impact: Categorical The Commission first published a Exclusion proposed general statement of policy on 10 CFR Part2 The NRC has determined that this enforcement on October 7, 1980 (45 FR final rule is the type of action described . RIN 3150-AD97 66754). The Commission published a in categorical exclusion 10 CFR final version of the policy on March 9, 51.22(c)(Z). Therefore neither an Policy and Procedure for Enforcement 1982 (57 FR 9987). Since that time, the environmental impact statement nor an Actions; Policy Statement General Statement of Policy and environmental assessment has been Procedure for NRC Enforcement Actions AGENCY: Nuclear Regulatory (Enforcement Policy) has been revised prepared for this final rule. Commission. on a number of occasions. The last Paperwork Reduction Act Statement ACTION: Policy statement: Revision. major revision of the Enforcement Policy was published on October 13, 19BB (53 This final rule does not contain a new

SUMMARY

The Nuclear Regulatory FR 40019). Based on additional or amended information collection Commission (NRC) is revising its experience, the Commission has requirement subject to the Paperwork General Statement of Policy and determined that it is appropriate to Reduction Act of 1980 (44 U.S.C. 3501 et Procedure for Enforcement Actions make additional changes to the seq.). Existing requirements were (Enforcement Policy). This notice Enforcement Policy.

approved by the Office of Management informs licensees, vendors, and the and Budget approval number 3150-0136. public of the considerations relevant to Revisions to the Enforcement Policy Backfit Analysis various enforcement actions. The The more significant modifications purpose of this action is to update and and changes to the policy are described The NRC has determined that the clarify the Enforcement Policy so that it in the following paragraphs, including backfit rule, 10 CFR 50.109, does not not is easier to use and understand. The those changes to (1) reorganize and apply to this final rule, and therefore. policy is codified as appendix C to 10 expand the existing organizational that a backfit analysis is not required for CFR part 2 to provide widespread structure (including the incorporation of this rule, because this am,mdment does dissemination of the Commission's an index of the new organizational not involve any provisions that would Enforcement Policy. However, this is a structure); [2) reflect the enforcement impose backfits as defined in 10 CFR policy statement and not a regulation. functions of two Deputy Executive 50.109[a)(1). Directors for Operation and clarify the DATES: This revised statement of policy is effective on February 18, 1992 while enforcement functions of the Office of List of Subjects comments on the changes are being Enforcement and of all offices received. Submit comments on or before conducting inspection activities: (3) 10CFRPart2 April 3, 1992. Comments received after provide additional guidance and expand Administrative practice and this date will be considered if it is existing guidance regarding severity. procedure, Antitrust, Byproduct practical to do so, but the Commission is level categorization; [4) propose base material, Classified information, able to assure consideration only for civil penalties for violations meeting the Environmental protection, Nuclear comments received on or before this civil penalty criteria at Severity Level IV date. Comments may be considered in and eliminate civil penalties for materials, Nuclear power plants and

• violations at Severity Level V; (5) reflect reactors, Penalty, Sex discrimination. future revisions of the statement of policy. modifications to the civil penalty Source material, Special nuclear adjustment factors used in developing material, Waste treatment and disposal. ADDRESSES: Send comments to: The civil penalties including additional 10 CFR Part 15 Secretary of the Commission, U.S. guidance on when such factors need not Nuclear Regulatory Commission, be considered; (6) establish minimum Administrative practice and Washington, DC 20555. ATIN: civil penalties for certain overexposures, procedure, Debt collection. Docketing and Service Branch. loss of licensed material and release of For the reasons set out in Lli.e Hand deliver comments to: One White licensed material; [7) provide for preamble and under the authority of the Flint North, 11555 Rockville Pike, expanded use of discretion to either Atomic Energy Act of 1954, as amended.

the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 552 and 553. the NRC is adopting the following amendments to 10 CFR parts 2 and 15. 2-SC-103

PART 2

• STATEMENTS OF CONSIDERATION increase or decrease the amount of a Executive Director for Nuclear Reactor B. Repetitive Violations proposed civil penalty arrived at after Regulation, Regional Operations and This section discusses when it may be application of the normal guidance, i.e., Research (DEDR) is responsible for appropriate to escalate a Severity Level civil penalty adjustment factors, to reactor enforcement matters. Therefore, V or IV violation to a Severity Level IV ensure that the proposed penalty the previous references to the Deputy or III violation respectively. This section reflects the appropriate level of concern Executive Director for Regional also includes the definition of and conveys the appropriate message; Operations, a position that has been "repetitive violation," that is based, for (8) provide for expanded use of abolished, has been replaced with the most part, on the definition of discretion to encourage licensee references to the "appropriate Deputy "similar," that was contained in the identification and correction of Executive Director." previous policy's Section V.8.

violations including certain Severity This section also clarifies that the Level II violations and willful violations C. Willful Violations committed by low level employees, as Office of Enforcement (OE) exercises oversight of and implements the NRC This section is based on the well as not issuing enforcement actions discussion previously contained in for certain licensee identified and enforcement programs and coordinates Section III regarding willful violations corrected violations involving old escalated enforcement actions and that and emphasizes the importance of design, engineering, or installation the Director, OE, acts for the two Deputy preventing willful violations. This failures; (9) provide additional examples Directors in their absence or as section also includes a revised definition in Supplement I-Reactor Operations, delegated. In addition, this section has of "licensee official," (previously Supplement VI-Fuel Cycle and been modified to reflect that subject to contained in Section VI.'"Inaccurate and Materials Operations, and Supplement the oversight and direction of OE, and Incomplete Information"), that deletes VIII-Emergency Preparedness; (10) with the approval of the appropriate the reference to "person listed on a substantially revise the examples in Deputy Executive Director, where license," since authorized users are Supplement III--;Safeguards, to better necessary, the regional offices normally sometimes not listed on a license focus on safety significance; and (11) issue Notices of Violation and proposed because the license provides the reflect editorial and other minor civil penalties. This section also clarifies licensee with the authority to designate changes. that, subject to the same oversight as the authorized users such as radiographers, Only the sections to which text regional offices, the Office of Nuclear portable gauge users, well loggers, changes were made (versus mere Reactor Regulation (NRR) issues Notices researchers, or physicians. The section re-numbering), are discussed. of Violation and proposed civil penalties reference to negligence has been deleted The numbering of the sections tracks the to vendors and suppliers and the Office from this discussion since negligent modified section numbers in the policy. of Nuclear Material Safety and conduct is not willful. The policy In an effort to make the policy easier to Safeguards (NMSSJ issues Notices of provides in this section that willful use, an outline of the policy's revised Violation and proposed civil penalties to severity level V violations are to be organizational structure has been certificate holders and to fuel cycle categorized at least at a level IV. included. facilities for violations involving D. Violations of Reporting Requirements Appendix C-General Statement of Polley material control and accounting. This section is based on the and Procedure for NRC Enforcement The policy now provides that with the discussion previously addressed in the Actions approval of the appropriate Deputy last paragraph of Section III. Preface Executive Director and consultation with the EDO as warranted, the NRC VI. Enforcement Actions The introductory paragraph of the staff has the discretion to depart from previous policy has been modified so This section (previously Section VJ, the policy in the public's interest, unless has been modified to include letters of that it is now titled as the "Preface," and it no longer refers to the Atomic Safety prior consultation or notice to the reprimand and Demands for Information and Licensing Appeal Board because of Commission is required. A new as additional administrative the Board's abolition, effective July 31, requirement for Commission mechanisms and to delete the references consultation has been added to reflect to Bulletins, Information Notices, and 1991. Generic Letters as administrative

• those cases where the NRC staff III. Responsibilities proposes to exercise discretion for mechanisms because they do not have This section (previously Section VIII), matters meeting the criteria of section direct enforcement connotations.

has been modified to reflect that two VII.A.1 of appendix C. Finally, this A. Notice of Violation deputies in the Office of the Executive section incorporates the definition of the term "escalated enforcement action." This section (previously Section V.AJ, Director for Operations are responsible has been changed by modifying the for portions of the Enforcement Program. response to a Notice of Violation IV. Severity of Violation The Deputy Executive Director for (Notice) to be consistent with the Nuclear Material Safety, Safeguards, This section (previously section III), current standard format for a Notice. and Operations Support (DEDS) is has been expanded by including four This section has also been changed by responsible to the Executive Director for new sub-sections that provide moving the previous discussion Operations (EDO) for the oversight of additional guidance regarding those regarding the exercise of discretion for the Enforcement Program and for non- circumstances where the severity level isolated Severity Level V violations to reactor enforcement issues. The Deputy categorization may warrant adjustment. the new Section VII.B.1. A. Aggregation of Violations B. Civil Penalty This section addresses when it may This section (previously Section V.B), be appropriate to aggregate violations to has been revised to state that civil a single Severity Level I, II, or III penalties are proposed (absent problem. mitigating circumstances) for Severity 2-SC-104

PART 2

• STATEMENTS OF CONSIDERATION Level III violations (versus previously addressed in Section V.B regarding the be self-disclosing from the event itself.

being considered) and that civil purpose of adjusting the amount of a For example, mitigation may be penalties may be proposed for repetitive proposed civil penalty, i.e., to encourage appropriate in a case involving a reactor Severity Level IV violations. Civil good licensee performance, deter poor trip (a self-disclosing event) where the penalties will continue to be normally licensee performance, and emphasize licensee determined that the root cause considered for any willful violation of violations of particular regulatory of the event was the licensee's failure to the Commission's requirements to concern. This subsection also includes perform an adequate procedure change reflect the significance that the the provision that civil penalties review. The discussion for this factor Commission places on such violations. proposed for Severity Level IV also includes a definition of "self-While no violation is acceptable, willful violations are normally proposed at the disclosing event." Finally, in keeping violations are of particular concern and base values without assessing the civil with the intent to provide greater merit civil penalty consideration penalty adjustment factors because (1) incentives for licensee identification, because integrity and credibility of the decision to utilize a civil penalty at this factor also provides that mitigation licensees and their contractors, Severity Level IV is discretionary and may be considered if the licensee employees and agents go to the normally considers most of the factors identifies the violation as a result of a foundation of the Commission's and (2) the relatively small amount of generic notification. This factor has regulatory program. the base penalty does not provide for been further clarified to emphasize Civil penalties have been flexibility to apply the factors in a escalation for NRC identification of a reconsidered for Severity Level V meaningful way. The civil penalty violation. If the NRC can perform

• violations. The issuance of a civil adjustment factors have been modified inspections on an audit basis and penalty for a Severity Level V violation as discussed below for the reasons as identify violations of significant would not be consistent with the stated, including the desire to minimize regulatory concern, including identifying definition of a Severity Level V overlap between the factors. lesser violations that collectively violation, i.e., a minor safety or (a) Identification. This factor represent a breakdown of significant environmental concern. Therefore, the (previously titled, "Identification and regulatory concern, licensees should be Severity Level V base penalty has been Reporting"), has been renamed to reflect able to identify similar violations.

deleted from Table 1B. However, if a the elimination of reporting as a Finally, because this factor focuses on Severity Level V violation recurs or is consideration under this factor. identification, the issue of immediate willful, thus increasing its significance, Therefore, notwithstanding an corrective action previously considered the violation would be categorized at incomplete or untimely required report, in this factor is now being addressed least a Severity Level IV and a civil mitigation would be appropriate under under the "Corrective Action" civil penalty may be assessed at that this factor if the licensee identified the penalty adjustment factor. Under that Severity Level. violation. In this case, however, it is factor, the licensee's failure to take The discussion of the remedial expected that a separate enforcement immediate corrective action upon purpose of civil penalties has been action would be issued for the violation identification of a violation may result expanded to recognize the deterrent of reporting requirements. The guidance in escalation of the civil penalty. effect of the enforcement action on both for this civil penalty adjustment factor (b) Corrective action. This factor the involved licensee and other has also been revised to emphasize the (previously titled, "Corrective Action to licensees that may be conducting similar importance of licensees identifying Prevent Recurrence"), has been renamed activities. Thus, it may be appropriate in violations by providing greater to reflect that this factor now considers some cases to issue a civil penalty to a incentives for licensee identification. In both immediate and long term corrective licensee who is terminating licensed order to encourage the identification of action. Further, the long term corrective activities for a particularly significant violations, mitigation of up to 50% may action must not only be sufficient to violation to deter future violations by be appropriate for licensee identification prevent "recurrence," it must be other licensees. Finally, this section has even if the licensee could have comprehensive enough to prevent been modified so that the subsequent identified the violation sooner. The "occurrence" of similar violations. This guidance is divided in two new failure to respond to the prior factor also recognizes that the subsections.

• opportunities to identify the violation appropriate level of comprehensiveness will be addressed under the "Prior will be a function of the significance and

1. Base Civil Penalty Opportunity to Identify" factor. complexity of the violation. It also This new subsection includes Furthermore, this factor now specifically considers the adequacy of the licensee's guidance previously addressed in addresses that up to 25% mitigation may root cause analysis and the promptness Section V.B and also includes the be appropriate when a licensee with which the licensee develops and provision that the NRC will consider identifies a violation resulting from a implements its schedule for long term payments over time (including interest) self-disclosing event where the licensee corrective action. Notwithstanding for those licensees that can demonstrate demonstrated initiative in identifying comprehensive corrective action, if financial hardship. However, the policy the root cause of the violation. Initially,

• immediate action was not taken to provides that if the licensee claims the NRC Enforcement Policy provided restore safety and compliance once the financial hardship, the licensee will no mitigation for violations associated violation was identified, mitigation normally need to address why it with self-disclosing events (47 FR 9987). based on this factor would not normally nevertheless has sufficient resources to In the 1984 revision (49 FR 8583), that be considered and escalation may be safely conduct licensed activities and was changed to allow mitigation as considered to address the licensee's pay all appropriate fees. appropriate. This change reflects current failure.

practice and the view that incentives for (c) Licensee performance. This factor

2. Civil Penalty Adjustment Factors identification of violations and their root (previously titled, "Past Performance"),

Although substantially condensed, causes may be appropriate even for has been renamed to reflect the purpose this new subsection reflects the some self-disclosing events, since the of this factor, i.e., to recognize good or concepts of the guidance previously violations and their root causes may not improving performance and to deter 2-SC-105

PART 2

• STATEMENTS OF CONSIDERATION poor or declining performance. Under level of management review that the D. Related Administrative Actions this factor, the current violation is notification received (or should have This section (previously Section V.H),

viewed in light of the licensee's prior received). has been modified by including letters of performance and provides for mitigation [e) Multiple occurrences. This factor reprimand and Demands for Information if the current violation is an isolated has been clarified so that escalation as additional administrative occurrence that is inconsistent with a should normally only be considered for mechanisms and by deleting the licensee's good prior performance and Severity Level I, II, or III violations with references to Bulletins, Information escalation if the current violation is a the same root cause. Where warranted, Notices, and Generic Letters as reflection of a licensee's poor prior this factor need not be applied and administrative mechanisms because performance. Prior cases where the NRC separate civil penalties may be assessed they do not have direct enforcement exercised discretion and refrained from for each violation. connote lions. issuing enforcement actions will also be (f) Duration. This factor has been considered, as appropriate, when VII. Exercise of Discretion broadened to include not only the evaluating the licensee's prior violation that continues for more than This section basically combines the enforcement history for purposes of guidance previously addressed in one day, but also the single violation assessing the licensee's prior Section V.D, "Escalation of Enforcement whose impact continues for more than performance. In addition, Sanctions," and Section V.G, "Exercise notwithstanding good prior one day. This factor should be applied of Discretion," to reflect that it may be performance, mitigation will not in those cases where it would be appropriate to exercise discretion by normally be considered if the current appropriate to emphasize a particularly either escalating or mitigating violation represents a substantial significant violation or where a strong enforcement sanctions beyond the decline in performance since the last regulatory message is intended. For normal bounds of the policy to ensure NRC inspection, such as in cases that example, it would be appropriate to that the appropriate sanction is applied. demonstrate eitqer current management utilize this factor in addition to the Therefore, the guidance in this section is failure to take charge of their licensed "Prior Opportunity to Identify" factor subsequently divided into two activities or degradation of the program where a safety system remains subsections based on this concept. over time. Finally, the guidance for this degraded or inoperable for more than factor has been revised to reflect that it one day and the licensee should have A. Escalation of Enforcement Sanctions is not applicable for those licensees who identified and corrected it sooner This section basically combines the have not been in existence long enough through surveillances, audits, or quality previous discussion from Section V.D to have developed a prior performance assurance activities. [now addressed as VII.A.2), with two history or where the area of concern has Notwithstanding the application of the new subsections. not been previously inspected, unless

• civil penalty adjustment factors, the overall performance is clearly (1) Civil Penalties policy has been modified to provide for outstandingly good. minimum civil penalties for significant This subsection provides added (d) Prior opportunity to identify. This overexposures and releases or losses of flexibility to adjust the amount of a civil factor [previously titled, "Prior Notice"), radioactive material. Penalties will penalty notwithstanding the outcome of has been renamed to reflect broadly on normally be mandated in these cases to the normal civil penalty assessment the issues of prior opportunity to provide deterrence to avoid these process [i.e., base civil penalty adjusted identify violations. Previously, this violations because they represent the based on application of the civil penalty factor only considered the regulatory very failure the regulatory program is adjustment factors). Exercise of this concern associated with a licensee not designed to prevent. Normally, discretion would require prior approval acting on "prior notice," as in mitigation will only be permitted for by the appropriate Deputy EDO with information addressed in an NRC or actions in response to the violations, i.e., appropriate consultation with the EDO industry notification. This factor will identification and corrective actions. In and would require Commission now also consider the prior addition, the policy has been modified consultation if the deviation in the opportunities that a licensee had to to emphasize the original intent to allow amount of the proposed penalty under identify a violation through its routine necessary flexibility in assessing civil this discretion from the normal process activities such as surveillances, audits, penalties, so that discretion may be is more than two times the base civil or other findings or observations of its penalty for the violation's severity level exercised in adjusting the amount of the in the tables. In other words, employees or contractors, but failed to civil penalty, notwithstanding the do so. This factor has also been clarified Commission consultation would be application of the civil penalty required in a case involving a Severity to emphasize that the existence of prior adjustment factors, to ensure that the notification does not automatically Level III violation in the area of reactor proposed penalty reflects the operations where the staff chooses to justify an increase in the civil penalty. If appropriate level of NRC concern and a licensee can demonstrate that it acted exercise discretion and propose a civil conveys the appropriate message to the penalty in the amount of $200,000 where reasonably in response to a prior licensee.

notification, escalation is normally not assessment using the civil penalty warranted. In assessing this factor, Finally, footnote 6 of Table 1A has adjustment factors would result in a consideration will be given to the prior been amended to add a relatively new civil penalty in the amount of $75,000. opportunity [or opportunities) available type of licensee, mobile nuclear services, which presents the same type [2) Orders to discover the violation, the ease of discovery, the specificity and of hazards as a medical licensee and the As stated above, this section includes applicability of the notification to the percentage of the base civil penalty for a the guidance previously addressed in licensee's operation, the age of the Severity Level V violation has been Section V.D. In addition, Table 2 has notification, the reasonableness of the removed from Table 1B consistent with been modified to reflect that civil licensee's actions in light of the the deletion of civil penalties for penalties are proposed for Severity potential safety consequences, and the Severity Level V violations. Level III violations, absent mitigating 2-SC-106

PART 2

• STATEMENTS OF CONSIDERATION circumstances. Item c in Table 2 has (3) Violations Identified During VIII. Enforcement Actions Involving also been modified to state that the NRC Extended Shutdowns or Work Individuals may use a Demand for Information to Stoppages This section (previously Section V.E),

obtain information to determine whether This subsection has been changed to has been clarified by noting that to issue an order for modification, violations involving willful conduct not suspension, or revocation of the license. allow discretion to be exercised by refraining from proposing a civil penalty amounting to deliberate action by an (3) Daily Civil Penalties for Severity Level II violations, where unlicensed individual may result in the previous discretion was only enforcement action against a licensee This subsection clarifies that the NRC that may impact an individual. This may exercise discretion and assess a applicable for violations up to Severity Level lll. Clearly, it is in the public's section also previously stated that the separate violation and attendant civil NRC would normally only issue a Notice penalty up to the statutory limit of interest for a licensee to identify of Violation for a licensed operator's $100,000 for each day a particularly Severity Level II violations before safety first confirmed positive test in the significant violation continues. systems are called upon to operate. absence of aggravating circumstances B. Mitigation of Enforcement Sanctions (4) Violations Involving Old Design such as errors in performance. This Issues discussion has been clarified by This section is based, for the most including evidence of prolonged use as part, on guidance previously addressed This subsection has beep changed to an additional aggravating circumstance. in Section V.G. The former example allow discretion to be exercised for addressed in Section V.G.3 has been Severity Level II violations, where the X. Enforcement Action Against deleted because the same discretion can previous discretion was only applicable Nonlicensees be achieved by mitigation based on for violations up to Severity Level Ill. It This section (previously Section IX), application of the civil penalty also clarifies that broad corrective has been modified to delete the adjustment factors. In addition, the action is e~pected. In addition, this reference to enforcement action against discussion in this section also states subsection has been changed to allow licensees for failure to ensure their that the NRC may exercise discretion for discretion to not issue a Notice of vendors have programs to meet 10 CFR violations meeting the required criteria Violation where licensees identify part 21 because the Commission does for discretion where the licensee failed violations that are not likely to be not require licensees to provide that to make a required report to the NRC otherwise identified through routine assurance. concerning the violation at issue. efforts, and do not reflect on current However, the policy states that a XII. Public Disclosure of Enforcement performance. This change is intended to Actions separate enforcement action would be place a premium on identifying design, issued for the licensee's failure to make This section (previously Section VII), engineering, and installation violations the required report. has been modified to reflect that press before affected systems are called upon releases may also be issued in those (1) Severity Level V Violations to work. These issues will be included in cases where a proposed civil penalty is This subsection is based on the inspection reports, and enforcement withdrawn or mitigated by some previous guidance addressed in Section conferences may be held to be sure NRC amount. V.A and has been clarified to allow for has a record of the issue and a full not issuing a Notice of Violation for understanding of the root cause and Supplement I-Reactor Operations isolated Severity Level V violations corrective actions before making a Examples A.4, B.2, and C.5 and provided the licensee has committed to decision to exercise this discretion. footnote eight have been deleted from specific corrective actions by the end of (5) Violations Identified Due to Previous this supplement. The deletion is the inspection. Previously, the appropriate based on the fact that (1) Escalated Enforcement Action effluent release criteria in Supplement I requirement was that the corrective action had to have been initiated by the This subsection has been changed to were no longer comparable to those in end of the inspection. While this is the allow discretion to be exercised by Supplement IV, and (2) effluent release normal case, the change will provide refraining from proposing a civil penalty criteria in Supplement IV adequately flexibility to allow commitments for for Severity Level II violations, where cover power reactor scenarios corrective action, provided the schedule the previous discretion was only commensurate with their safety is acceptable to the staff. This approach applicable for violations up to Severity significance. is consistent with the treatment of Level Ill. Example C.2 has been expanded to licensee identified Severity Level IV (6) Violations Involving Special include systems designed to prevent or violations. Circumstances mitigate a serious safety event being (2) Licensee Identified Severity Level IV degraded to the extent that a detailed This subsection is based in part, on evaluation is required to determine and V Violations the guidance previously addressed in operability. This example has been This subsection has been expanded to the sixth paragraph of Section V.G and added to reflect the significance address willful violations of low safety also addresses the discretion to reduce associated with a degraded system that significance committed by relatively low the amount of a proposed civil penalty, is not intuitively operable, even if, based level individuals. Discretion is notwithstanding the outcome of the on after the fact analysis, the system is appropriate where the licensee identifies normal assessment process, to ensure operable. In both the licensing and and corrects these violations, provided that the penalty reflects the NRC's operation of the plant, safety systems the factors addressed in the policy are concern and conveys the appropriate are expected to be installed and met. This discretion recognizes licensees message. This discretion has also been operated as designed. Therefore, a who are acting responsibly by providing expanded to include Severity Level II departure from the design document and incentive for licensees to identify and violations to provide the needed the FSAR where the licensee did not properly respond to these violations. flexibility in the enforcement program. have assurance, while the system was 2-SC-107

PART 2

• STATEMENTS OF CONSIDERATION degraded, that the safety systems would area barriers involve significantly less significance so that they are now perform as intended, represents a degradation of overall safeguards expressed in terms ofradiation significant regulatory concern. capability than violations related to exposures occurring during any year Example C.3 has been modified so perimeter safeguards. The most versus previously being expressed in that the previous example of a violation significant violations related to control terms of single radiation exposures.

involving "dereliction of duty" on the of access from the owner controlled Similarly, examples F.2, G.2, and H.2 part of personnel involved in licensed area into the protected area remain as have been modified so that they are now duty has been deleted to provide the Severity Level III. Violations related to expressed in terms ofradiation necessary flexibility in dealing with control of access from the protected exposures occurring during the gestation these types of violations. Specifically, area into a vital area have been reduced period versus previously being given the broad range of possible from Severity Level III to Severity Level expressed in terms of single radiation circumstances with respect to the level IV. With respect to an insider, a exposures. of intent and the level of the individual majority of people authorized access to Example F.4 has been modified to involved, a violation could possibly be the protected area also are authorized reflect the current views regarding the categorized at Severity Level I, II, Ill, or access to vital areas at most sites. safety significance of exposures to the IV. Instead, the example of a Severity Further, all employees granted public so that the example now Level III violation has been modified so unescorted access to protected areas are references 1.0 rem total effective dose that it now involves "inattentiveness to subjected to employee reliability equivalent versus previously referencing duty" on the part of a licensed measures. Thus, violations involving 2.5 rems total effective dose equivalent. individual. only access from the protected area into The example of a Severity Level III a vital area related to personnel who violation concerning a radiation Supplement III-Safeguards have also been judged to be trustworthy, exposure to an embryo/fetus (H.2] has Revisions to the safeguards most of whom are authorized access also been modified by including a enforcement sup_plement are the result into vital areas anyway are therefore reference to the additional provisions of of a reassessment of the safeguards less significant. § 20.1208 [d) that provide for additional program in response to the Regulatory Severity Level III violations involving dose over the standard embryo/fetus Impact Survey (NUREG-1395) and to control of safeguards information have dose limit of 0.5 rem total effective dose incorporate lessons learned from the been revised to focus on compromise of equivalent in § 20.1208 (a). Regulatory Effectiveness Review (RER) the information, as opposed to failure to secure the information. In addition, the Supplement V-Transportation program. The revisions more properly reflect the relative significance of weighing of other factors, such as Examples A.1 and B.1 have been reactor safeguards with respect to location and duration of the violation, modified to reflect the potential for reactor safety enforcement issues. are more explicit. This increase in the significant exposure to a member of the Severity Level I safeguards examples threshold level for a Security Level III public caused by transportation failures. violation is appropriate because failure Specific radiation limits have not been have been modified to reflect to secure information, in itself, does not provided for the examples because once radiological sabotage simply as one significantly decrease overall possible cause of plant conditions listed there has been a transportation incident safeguards capability, especially within with the loss of control of radioactive as Severity Level I examples in the the protected area where individuals material where there is a clear potential . reactor operations supplement. This who have unescorted access have been for a significant radiation exposure, the better reflects the risk to public health judged trustworthy through the access actual exposure is a function of the and safety which could result from clearance program. knowledge of the member of the public, radiological sabotage. and the time and distance from the Entry of an unauthorized individual, Supplement IV-Health Physics (10 CFR Part 20) source. The purpose of transportation who represents a threat, from outside requirements is to prevent unshielded the protected area into a vital area has Examples C.4 and E.8 addressing radioactive material from getting into been changed from Severity Level I to violations with a substantial potential the public domain. When that happens, Severity Level II assuming sabotage did for a release or exposure in excess of there is a clear potential for a very not occur. The loss of public safety the limits in 10 CFR part 20 have been

• significant exposure and, therefore, it is margin resulting from such unauthorized modified to remove the explanatory considered a violation of very entry, without radiological sabotage, examples. As written, the examples significant regulatory concern. The more closely parallels the loss of safety were too limiting. It is a significant Severity Level I example (A.1),

margin in Severity Level II reactor regulatory concern if an event or addresses actual exposure to a member operations violations. circumstance presents a substantial of the public caused by the violation. Violations involving weaknesses in potential for an exposure or release in The Severity Level II violation does not safeguards systems, components, and excess of part 20 when it is only require actual exposure. procedures have been reclassified fortuitous that an exposure or release among Severity Level III, IV, and V does not exceed part 20 limits. Supplement VI-Fuel Cycle and according to the significance of the Therefore, these examples do not Materials Operation resulting degradation of overall address the potential amount of the Two new examples (C.9 and C.10) safeguards capabilities and are excessive release or exposure, but have been added to this supplement to expressed in terms of loss or weakening rather focus on the lack of adequate address a licensee's failure to submit an of performance capability. In protecting controls that were not exercised except NRC Form 241 in the case of individuals against an external adversary, it is for a minor alteration of circumstances, licensed *under an Agreement State, and essential that detection and assessment e.g., time or distance, a violation of part the failure to receive prior NRC occur at the perimeter of the protected 20 limits would have occurred. approval before making a si~ificant area to assure the ability to protect . Examples F.l, F.3, G.l, G.3, H.1, and change in licensed activities. These against a determined violent assault. H.4 have been modified to more examples have been included because it Violations related to the secondary vital appropriately reflect their safety is important for the NRC to be aware of 2-SC-108

PART 2

• STATEMENTS OF CONSIDERATION significant changes associated with List of Subjects in 10 CFR Part 2 57FR 20194 licensed activities, such as a change in Published 5/12/92 the location of activities, a change in Administrative practice and procedure, Antitrust, Byproduct Effective 6/11/92 personnel, or a change in the quantity or type of radioactive material being material, Classified information, processed or used, because these Environmental protection, Nuclear materials, Nuclear power plants and 10CFR Part2 changes may have a significant impact on how licensed activities are carried reactors, Penalty, Sex discrimination, RIN 3150-AD&O out or how they affect the NRC's ability Source material, Special nuclear material, Waste treatment and disposal. Revisions to Procedures To Issue to appropriately regulate, such as its Orders: Challenges to Orders That Are responsibility to inspect licensed For the reasons set out in the preamble and under the authority of the Made Immediately Effective activities. A licensee's failure to submit
• an NRC Form 241 results in the NRC not Atomic Energy Act of 1954, as amended, AGENCY: Nuclear Regulatory being aware of licensed activities being the Energy Reorganization Act of 1974, Commission.

conducted in NRC jurisdiction. as amended, and 5 U.S.C. 552, the NRC Therefore, the NRC will not be in a is adopting the following statement of ACTION: Final rule. position to inspect the activity and policy as appendix C to 10 CFR part 2. address the public health and safety

SUMMARY

The Nuclear Regulatory issues. The NRC also recognizes that Commission (NRCJ is revising its some licensees may decide not to file an regulations governing orders to provide

• NRC form 241 because of its associated for the expeditious consideration of license fee. For these reasons, civil challenges to orders that are made penalties will be considered for these immediately effective. The amendments
• failures. specifically allow challenges to the 57FR8519 immediate effectiveness of an order to Supplement VIII-Emergency Published 3/10/92 be made at the outset of a proceeding Preparedness and provide procedures for the Introductory discussion has been expedited consideration and disposition

. added to this supplement consistent 10 CFR Part 2 of such challenges. The amendments with past practice to emphasize that also require that challenges to the merits . citations are not normally made based RIN 31SO-AD97 of an immediately effective order be on observations during exercises. This is heard expeditiously, except where good because NRC desires that licensees Polley and Procedure for Enforcement cause exists for delay. broadly exercise their staffs with Actions; Polley Statement EFFECTIVE, DATE: June 11, 1992. realistic scenarios. If the licensees do FOR FURTHER INFORMATION CONTACT: not have this exception, it may result in Correction John Cho, Office of the General Counsel. licensees using only experienced In rule document 92-3804 beginning on U.S. Nuclear Regulatory Commission, individuals and conservative scenarios page 5791 in"the issue of Tuesday, Washington, DC 20555, Telephone: 301-to avoid potential enforcement action. February 18, 1992, make the following 504-1585. However, enforcement action may be corrections: appropriate where exercises reveal SUPPLEMENTARY INFORMATION: training, procedural, or repetitive 1. On page 5800, in the first column,

Background

failures for which corrective actions after the first full paragraph, insert the have not been taken, overall concern letter "U' before the word "Violations". On July 5, 1990 (55 FR 27645), the regarding the effectiveness of the 2. On page 5802, in the table, in the Commission published in the Federal licensee's emergency planning, or poor third column, under "Sefeguerds"the " Register proposed changes to the self-critiques of exercises. dotted line" should be set as a "dash". Commission's Rules of Practice, 10 CFR Currently the .examples in this 3. On page 5814, in the second column,

• part 2, relating to orders that are made supplement address only assessment in the sixth paragraph, in the first line, immediately effective. These changes and notification violations for other than "B. Severity ***" should read "C. were part of a broader Commission actual emergencies. Accordingly, an Severity***", effort to clarify and improve its example of violations demonstrating a regulatory enforcement mechanism.

breakdown in control gf licensed In April 1990, other changes to various activities has been added to the parts to 10 CFR chapter I had been supplement consistent with other 57 FR 18388 proposed. These included changes to Published 4/30/92 part 2 to make clear that unlicensed supplements. This will give the staff Effective 6/1/92 better flexibility to deal with significant persons who violate Commission violations to emphasize the need to licensing and regulatory requirements Uranium Enrichment Regulations provide assurance of emergency may be subject to Commission preparedness before actual emergencies See Part 40 Statements of Consideration enforcement action and to identify the occur. types of orders to which hearing rights attach (55 FR 12370; April 3, 1990). They Paperwork Reduction Act Statement also included changes to parts 30, 40, 50, This policy statement contains no 60, 61, 70, 72, 110 and 150 to put

• information collection requirements and unlicensed persons on notice that they therefore is not subject to the Paperwork Reduction Act of1980 (44 U.S.C. 3501 et seq.).

2-SC-109

PART 2

• STATEMENTS OF CONSIDERATION may be subject to Commission Summary of the Proposed Rule around four issues. These issues are enforcement action for willfully causing discussed below.

a licensee to violate any of the The July 5, 1990 notice contained proposed changes to § 2.202 to provide (1) Basis for Immediate Effectiveness Commission's requirements, or for other willful misconduct that arises out of specifically for challenges to the The commenters generally agreed activities within the jurisdiction of the immediate effectiveness of an order. with the need for the Commission to be NRC and places in question the NRC's Under § 2.202 as it now exists, an order able to make an order immediately reasonable assurance that licensed can be made immediately effective effective to protect the public health and activities will be conducted in a manner when required to protect the public safety. Concern was expressed, that provides adequate protection to the health, safety, or interest or for willful however, that the rule allows the public health and safety (55 FR 12374; violation of Commission requirements or Commission to make an order April 3, 1990). On August 15, 1991 (56 FR other willful misconduct. The changes immediately effective also for willful 40664), the Commission published a final proposed provided that the recipient of misconduct. In that connection, one rule covering the changes proposed in an immediately effective order could commenter noted that where the public the April 3 notices. challenge its immediate effectiveness by health and safety is not threatened, With that rule in place, further filing, at the time an answer to the order there is no strong governmental interest consideration by the Commission of the is filed, a motion to set aside immediate for immediate effectiveness. Another proposed changes to part 2 relating to effectiveness. Such a motion is required commenter asserted that a better the immediate effectiveness of orders is to be heard and decided expeditiously, balance between the government's generally no longer than fifteen days, by interests and the private rights of the a logical next step. Part 2 is now further individual charged, especially where the amended to allow early challenges to the presiding officer. In the interim, the presiding officer is without power to individual's livelihood may be at stake, the immediate effectiveness aspect of would be achieved by permitting stays immediately effective orders and to stay the effectiveness of the order. The changes also *contemplated that the of immediately effective orders in establish an expedited procedure for the willfulness cases. resolution of such challenges. presiding officer, a Licensing Board or These comments are deserving of

• Administrative Judge, must uphold immediate effectiveness if, on serious consideration. The Commission, however, believes that inclusion of consideration of the evidence presented willful misconduct as a basis for by the NRC staff, the presiding officer immediately effective orders affords it finds that the evidence is adequate to greater flexibility in dealing with license support the immediate effectiveness of violations and should be retained in the the order (i.e., the existence of facts and rule in the form presented. The NRC circumstances within the s~affs relies on the integrity of individuals knowledge, of which it has!reasonably involved in licensed activities to ensure trustworthy information, sufficient to compliance with NRC requirements.

cause a person of reasonable caution to When an individual willfully violates believe that the order is properly Commission requirements, that reliance founded). is undermined. Consequently, The changes also required that the immediately effective orders have been hearing on the merits be conducted on used in cases of willfulness where the an accelerated basis. Finally, the staff needed to take immediate action in changes allowed the presiding officer to order to restore reasonable assurance delay for good cause the proceeding on that the public health, safety and the merits. . interest would be protected. In these cases, the immediately effective order Public Comments and the Commission's was issued based not solely on a willful Response violation but also on a concurrent The July 5, 1990 notice resulted in the conclusion that the public health, safety receipt of comments from the Nuclear and interest also indicated the need for Management and Resources Council immediately effective action. * (NUMARC); two law firms, each Allowing orders to become representing several utilities and other immediately effective is not new. It has entities; and six individual utilities. been an integral part of§ 2.202 since at Generally, the commenters supported least 1962 (27 FR 377; January 13, 1962). the underlying purpose of the rule: to Moreover, allowing an order to become provide a procedure for the expedited immediately effective on the ground of resolution of challenges to the willfulness is consistent with Section 9 immediate effectiveness of an order. The of the Administrative Procedure Act, 5 commenters, however, had U.S.C. 558. Under that provision, orders disagreements on various aspects of the may be made immediately effective-rule. The disagreements revolved i.e., advance notice of license withdrawal, suspension, revocation or annulment need not be given in cases of willfulness or those in which the public health, safety, or interest so requires. See Koden v. Department ofJustice, 564 F.2d 228 (7th Cir. 1977); Cargill Inc. v. Hardin, 452 F.2d 1154 (8th Cir.1971); 2-SC-110

PART 2

• STATEMENTS OF CONSIDERATION KWK Radio, Inc. v. FCC, 337 F.2d 540 evidence standard for deciding presiding officer to uphold immediate (D.C. Cir. 1964): Goodman v. Benson, 286 challenges to the immediate effectiveness on the basis of the staffs F.2d B96, 900 (7th Cir. 1961); Air effectiveness of orders were mixed, evidence without having to balance it Transport Associates v. CAB, 199 F.2d ranging from qualified approval to total against the challenger's evidence.

181, 186 (D.C. Cir. 1952), certiorari disagreement. One commenter agreed The Commission has reevaluated the denied, 344 U.S. 922 (1953). that where the immediate effectiveness proposed adequate evidence test in light The Administrative Procedure Act of an order was based on public health of the comments received and continues provision is a manifestation of the well- and safety considerations, the adequate to believe that the test is warranted, not established principle that the evidence test struck a reasonable only to sustain immediate effectiveness government may, consistent with due balance between the need to protect the for health and safety considerations but process, take prompt action where

• public health and safety and the need to for willful violations of Commission needed to protect important government provide affected parties a reasonable requirements and public interest interests and provide a hearing a measure of protection against orders considerations as well. However, in reasonable time afterwards on the that may lack adequate foundation. response to the comments, the proposed merits of its action. See, e.g., Federal According to that commenter, however, rule is clarified in several respects in Deposit Insurance Corporation v. that is not the case where an order is this final rule.

Mallen, 486 U.S. 230 (1988). It may be based solely on willfulness. Under this final rule, the subject of an that in certain cases, as one of the Another commenter did not object to immediately effective order may move commenters suggested, an immediately the use of the adequate evidence test for the presiding officer to set aside effective order may cause a person to deciding the question of immediate immediate effectiveness at the time it suffer loss of employment while the effectiveness, but found the explanation files an answer to the order or earlier. order is being adjudicated. However, the that accompanied the rule confusing. Such a motion must be founded on the impact on the public health, safety, or According to that commenter, the following ground: the order, including interest from effects of violations of explanation given to the effect that a the need for its immediate effectiveness, Commission health and safety presiding officer must decide immediate is not based on adequate evidence but requirements must be given paramount effectiveness based on the adequacy of on mere suspicion, unfounded consideration over an individual's right the staffs evidence alone is not allegations, or error. For example, the of employment. The summary consistent with the cases cited by the motion in connection with an destruction of,property without prior Commission in support of the adequate immediately effective order suspending notice or hearing for the protection of evidence test, Transco Security, Inc. of license operation could assert that, public health has long been Ohio v. Freeman, 639 F.2d 318, 322-23 contrary to the order, immediate constitutionally upheld. See, e.g., Ewing (6th Cir. 1981); and Horne Brothers, Inc. effectiveness was not necessary to

v. Mytinger & Casselberry, Inc., 339 U.S. v. Laired, 463 F.2d 1268, 127~71 (D.C. protect the public health and safety.

594, 599-600 (1950). "It is sufficient, Cir. 1972). Those cases, the commenter Another example could be a motion that where only property rights are asserts, require that persons affected by asserts that immediate effectiveness concerned, that there is at some stage an an immediately effective order be given would adversely affect the public health opportunity for a hearing and a judicial meaningful opportunity to "present and safety to a significantly greater determination." Id. at 599 (citing Phillips information or argument" while the degree than allowing operation under

v. Commissioner, 283 U.S. 589, 596-97 opportunity provided by the rule is not the license in question pending final (1936): Bowles v. Willingham, 321 U.S. meaningful. Along this same line, decision on the suspension order. The 503, 520 (1944); Yakus v. United States, another commenter suggested that the motion shall be accompanied by 321 U.S. 414, 442-43 [1944)). adequate evidence test denies due supporting affidavits. The response by In this respect, section 9 of the process to a person subject to an Administrative Procedure Act does not the staff will present evidence immediately effective order in supporting the order and its immediate distinguish between willfulness and circumstances in which the person's public health, safety, or interest in effectiveness. The presiding officer will employment is at stake. According to then decide, on the basis of the setting them out as grounds for immediately effective orders. With the commenter, citing Cleveland Board information presented by the parties, respect to either ground, that act of Education v. Loudermill, 470 U.S. 532 whether adequate evidence to support .

dispenses with the need to provide a (1985), due process requires the the order and its immediate licensee with a second chance to comply government to offer such a person some effectiveness exists warranting the with the requirements of the agency sort of pre-termination hearing as an staffs action. The presiding officer may before the agency may revoke, initial check against mistaken decisions, call for oral argument but is not required withdraw, suspend, or annul the license. i.e., at least an opportunity to present to do so. The Commission expects the See Attorney General's Manual on the evidence, before giving effect to a presiding officer to hear and decide the Administrative Procedure Act (1947) at decision terminating employment. In the motion on an expedited basis, generally

91. In the same vein, the Commission commenter's view, by allowing the within 15 days of its filing. The filing of sees no need to provide different presiding officer to uphold immediate the motion will not stay the merits procedures for hearing challenges to effectiveness solely on the basis of NRC proceeding before the presiding such orders depending on the ground staffs evidence, the adequate evidence Licensing Board or Administrative upon which the order is founded. All test does not meet this requirement. Judge.

that is required is that, at some stage, Still another commenter opposed the The adequate evidence test there is an opportunity for a hearing and adequate evidence test altogether and contemplated by the rule is akin to that judicial determination. The rule adopted proposed in lieu thereof a enunciated by the court in Horne Bros., herein meets these requirements. preponderance of the evidence supra. The test may be likened to the standard. According to that commenter, probable cause necessary for an arrest, {2} Adequate Evidence Test the adequate evidence test made any a search warrant, or a preliminary The responses to the Commission's challenge of immediate effectiveness a hearing. This is less than must be shown proposed adoption of the adequate futile gesture since the rule required the at the trial, but must be more than 2-SC-111

PART 2

• STATEMENTS OF CONSIDERATION uncorroborated suspicion or accusation. deprivation, the likelihood of adequate evidence test is not a standard 436 F.2d at 1271. "Probable cause is governmental error, and the magnitude for determining the merits of an deemed to exist where the facts and of the governmental interests involved. immediately effective order. The test is circumstances within the affiant's Logan, 455 U.S. at 434. for use only upon challenge of knowledge, and of which he has The Commission believes that the immediate effectiveness at the outset of reasonably trustworthy information, are adequate evidence test strikes a the proceeding, to protect the person or sufficient unto themselves to warrant a reasonable balance between the persons named in the order against man of reasonable caution to believe government and the private interests in having to comply with arbitrary staff that an offense has been or is being the circumstances of the rule. Where the action prior to a hearing on the merits.

committed." United States v. Hill, 500 public health, safety, or interest is In other words, it serves merely as a F.2d 315, 317 (5th Cir. 1974). Thus, in the threatened, the Commission must have preliminary procedural safeguard context of the rule, adequate evidence is the flexibility to that whatever against the NRC stafrs taking deemed to exist when facts and protective action may be necessary, on immediately effective action based on circumstances within the NRC stafrs as timely a basis as possible, without clear error, unreliable evidence, or knowledge, of which it has reasonably unnecessary administrative and unfounded allegations. trustworthy information, are sufficient procedural impediment. This 3. Delays in the Merits Proceeding to warrant a person of reasonable consideration is paramount and any caution to believe that the charges right to a prior hearing on the The provision allowing reasonable specified in the order are true and that governmental action must give way to delays in the conduct of the proceeding the order is necessary to protect the the government's need to act rapidly on the merits of an immediately public health, safety, or interest. and effectively. In the Commission's effective order was questioned. One The Commission believes that this judgment, the adequate evidence test commenter suggested that allowing such test for determimng immediate meets these requirements. It provides delays on the sole basis of a showing of effectiveness has sufficient precedent, the Commission with room to deal with good cause by the staff did not give albeit in different contexts, to be threats to the public health, safety, and adequate consideration to the due understandable and workable; and that interest, and in cases of willful process rights of the affected persons. it does not violate due process. What misconduct, on a timely basis while it Adequate consideration of these rights, may not constitute a meaningful notice provides protection against pre-hearing in the commenter's view, required, at a and opportunity to be heard in one minimum, a showing of diligence in the actions that are unsubstantially circumstance may suffice in another. founded. investigation process or other proper What process is due a person requires a justification for the delay. According to As to the suggestion to replace the the commenter, these matters should be balancing between the government's adequate evidence test with a interest and the person's private r~solved by the presiding officer, not by preponderance of the evidence tlieCommission. Another commenter interest. As stated by the Court in standard, the Commission believes that Transco: questioned the appropriateness of the adequate evidence test allows allowing delays in the proceeding as The very nature of due process negates any protection of the public health, safety, or applied to cases involving willfulness. concept of inflexible procedures universally interest, while at the same time affords applicable to every imaginable situation The commenter suggested it was a substantial measure of protection to inappropriate for the Commission to

* * *. [C]onsideration of what procedures due process may require under any given         the entity that is the subject of the      allow an order that is devoid of health circumstances must begin with a                immediately effective order. As noted in    and safety considerations to become determination of the precise nature of the     part by another commenter, NUMARC,          immediately effective and then to delay government function involved as well as of     the preponderance of the evidence test      the proceeding to conduct further the private interest that has been affected by would provide further protection to         investigations to gamer additional governmental action.                           potentially affected parties, but the       evidence in the matter.

639 F.2d at 322, citing Cafeteria Workers additional evidence that may be The Commission agrees with the

v. McElroy, 367 U.S. 886 (1960). required to sustain action making an thrust of these comments to the effect Due process does nofrequire a rule order immediately effective under that that a grant of any delay in the that leaves the Commission impotent to test could take additional time to collect proceeding should take into act to protect the public health, safety, and evaluate during which time a threat consideration not only the interests of or interest, while its decision is being to the public health and safety could the government but of the persons challenged by affected parties. Hodel v. continue to exist and even increase. As affected by the order as well. The rule is Virginia Surface Mining and further noted by NUMARC, if public premised on that principle. It is Reclamation Ass'n, 452 U.S. 264, 299-302 health and safety is threatened, the bar contemplated that, under the rule, the (1981); Ewing v. Mytinger 8' Casselberry, against issuance of a stay during the presiding officer will grant a delay only Inc., 339 U.S. 594, 599-600 (1950); North fifteen-day period contemplated for if there is an overriding public interest American Cold Storage* Co. v. Chicago, deciding the challenge to immediate for the delay. A prime example would 211 U.S. 306 (1908). Due process requires effectiveness is also reasonable. The be the temporary need to halt the only that an opportunity be granted at a adequate evidence test strikes a proceeding where continuation would meaningful time and in a meaningful reasonable balance between the interfere with pending criminal manner for a hearing appropriate to the Commission's ability to protect the investigation or jeopardize prosecution.

nature of the case. Logan v. Zimmerman public health, safety, or interest on the The rule also contemplates that the Brush Co., 455 U.S. 422,437 (1982); basis of reasonably trustworthy presiding officer will monitor any delay Mathews v. Eldridge, 424 U.S. 319 (1976). information while still providing to ensure that good cause continues to What is meaningful depends on affected parties with a measure of exists for the delay. The rule, as appropriate accommodation of the protection against arbitrary enforcement adopted, allows for proper consideration competing interests involved. These action by the Commission.

• to be given to the public interest as well include the importance of the private In closing the discussion of this as the interests of the persons affected interest and the length of finality of the matter, it bears reminding that the by the immediately effective order.

2-SC-112

PART 2

• STATEMENTS OF CONSIDERATION

4. Need for Specific Time Limits for set aside immediate effectiveness on an procedural mechanism for dealing with Reaching Decisions expedited basis. orders that are made immediately As noted earlier, § 2.202(c)(2) of the effective. The rule, by itself, does not Environmental Impact: Categorical proposed rule authorized a person to impose any obligations on entities Exclusion

• whom the Commission has issued an including any regulated entities that immediately effective order, in addition The NRC has determined that this may fall within the definition of "small to demanding a hearing, to move to set final rule is the type of action described entities" as set forth in section 601(3) of aside the immediate effectiveness of the in categorical exclusion 10 CFR the Regulatory Flexibility Act, or within order. The proposed rule required the 51.Z2(c)(1J. Therefore, neither an the definition of "small business" as staff to respond within five days, after environmental impact statement nor an found in section 3 of the Small Business which the presiding Licensing Board or environmental assessment has been Act, 15 U.S.C. 632, or within the Small Administrative Judge was required to prepared for this final rule. Business Size Standards found in 13 decide the motion expeditiously. CFR part 121. Such obligations would Paperwork Reduction Act Statement not be created until an order is issued, One commenter suggested the need for specific time limits for reaching a This final rule contains no information at which time the person subject to the decision on a motion to set aside collection requirements and therefore is
• order would have a right to a hearing in immediate effectiveness as well as the not subject to the requirements of the accordance with the regulations.

decision on _the merits. As part of its Paperwork Reduction Act of 1980 (44 Backfit Analysis deliberation on the proposed rule, the U.S.C. 3501 et seq.). The NRC has determined that the Commission reviewed the practicality of Regulatory Analysis backfit rule, 10 CFR 50.109, does not a fifteen-day deadline in the resolution apply to this final rule and, therefore, of a motion to set aside immediate On August 15, 1991 (56 FR 40664), the Commission amended its rules of that a backfit analysis is not required for effectiveness. It i:oncluded that such an practice to make them more consistent this final rule, because this rule does not inflexible rule would not be workable. The Commission decided instead that with the Commission's existing statutory involve any new provisions which authority and to provide the would impose backfits as defined in 10 the rule should be without a fixed CFR 50.109[a)[1). deadline, but that the rule should be Commission with the appropriate accompanied by a strong direction that procedural framework to take action, in List of Subjects in 10 CFR Part 2 any motion to set aside immediate appropriate cases, in order to protect the Administrative practice and effectiveness would be resolved public health and safety. The procedure, Antitrust, Byproduct expeditiously, generally within fifteen amendments also were to make clear material, Classified information, days. the distinction between orders-e.g., Environmental protection, Nuclear Upon reconsideration, the directions to take or desist from taking materials, Nuclear power plants and Commission adheres to its earlier view. certain actions-and demands for reactors, Penalty, Sex discrimination, The Commission believes that the rule information. Only orders were to be

                                                                                         . Source material, Special nuclear without a fixed deadline for decision is      made immediately effective and subject

• material, Waste treatment and disposal.

necessary to provide presiding officers to hearing, consistent with existing regulations. Neither the preexisting For the reasons set out in the and the Commission with the necessary regulations nor the amendments, preamble and under the authority of the time to adjust to the number and however, contain provisions requiring Atomic Energy Act of 1954, as amended, complexity of the issues that may arise in the proceeding and that the that any hearing on an immediately the Energy Reorganization Act of 1974, effective order be conducted as amended, and 5 U.S.C. 552 and 553, Commission's expression of the need for expeditiously. This rulemaking the NRC is adopting the following expedition should operate to prevent supplements the August 15 amendments amendments to 10 CFR part z. unwarranted delays. Principally, for this reason, the Commission is leaving the by adding provisions directing the proposed rule unchanged in this respect expeditious conduct of any hearing on in this final rule. In leaving the rule an immediately effective order, but SBFR 14308 flexible as to the time of decision, the allowing delays in the conduct of such Published 3/17/93 Commission reemphasizes the critical hearings in certain circumstances where Effective 3/17/93 importance for the expedited good cause for delay is shown, and Comment period expires 4/16/93 consideration and decision on establishing a separate,*informal

• immediately effective orders including procedure for dealing rapidly with 10CFR Part2 any motions to set aside immediate challenges to the immediate RIN 3150-AE57 effectiveness. Under 10 CFR 2.718, effectiveness of such order.

presiding officers have broad powers for This rule constitutes the preferred Policy and Procedure for NRC regulating the conduct of proceedings course of action and the cost involved in Enforcement Actions; Policy and they are strongly reminded to use its promulgation and application is Statement those powers to the fullest, with due necessary and appropriate. The AGENCY: Nuclear Regulatory . regard to the rights of the parties, to foregoing discussion constitutes the

• Commission.

accomplish the necessary expedition. In regulatory analysis for this rule. ACTION: Policy Statement: Modification. sum, the rule intends that the presiding Regulatory Flexibility Certification officers will make every effort, utilizing

SUMMARY

The NRC is modifying its whatever powers are available, to hear As required by the Regulatory Enforcement Policy to describe more and decide challenges to immediately Flexibility Act of 1980 (5 U.S.C. 605(bl), fully the circumstances in which it may effective orders, including set aside the Commission certifies that this rule exercise enforcement discretion.

motions, as expeditiously as possible. will not have a significant economic DATES: This modification is effective on The Commission will also review and impact on a substantial number of small March 17, 1993. Comments received by decide presiding officer decisions that entities. The rule establishes the April 16, 1993 will be considered.* 2-SC-113

PART 2

• STATEMENTS OF CONSIDERATION Comments received after this date will plant startup where the course of action including the time for reviewing be considered if it is practical to do so, involves minimal or no safety impact instructions, searching existing date but the Commission is able to assure and the NRC staff is clearly satisfied that sources, gathering and maintaining the consideration only for comments. the exercise of discretion is consistent data needed, and completing and received during the 30-day period with the public health and safety. reviewing the collection of information.

following issuance. Exercise of enforcement discretion is

• Send comments regarding this burden ADDRESSES: Send comments to: appropriate only where the exercise of estimate or any other aspect of this Secretary, U.S. Nuclear Regulatory discretion is temporary and collection of information, including Commission, Washington, DC 20555, nonrecurring. The appropriate Regional suggestions for reducing this burden, to ATrN: Docketing and Service Branch. Administrator or his designee might the Information and Records Deliver comments to: 11555 Rockville exercise discretion where the expected Management Branch (MNBB-7714),

Pike, Rockville, Maryland 20852, noncompliance is of such short duration U.S. Nuclear Regulatory Commission, between 7:45 a.m. and 4:15 p.m. Federal that a license amendment could not be Washington, DC 20555, and to the Desk workdays. issued before the need no longer exists, Officer, Office of Information and Copies of comments received may be. making it impractical to amend the Regulatory Affairs, NEOB-3019, (3150-examined at: the NRC Public Document license. It may also be appropriate to 0136) Office of Management and Room, 2120 L Street, NW. (Lower exercise discretion for the brief period Budget, Washington, DC 20503. Level), Washington, DC. of time it requires the NRC staff to process an emergency or exigent TS List of Subjects in 10 CFR. Part Z FOR FURTHER INFORMATION CONTACT: James Lieberman, Office of amendment under the provisions of 1 o* Administrative practice and Enforcement, telephone (301) 504-2741 CFR 50.91(a) (5) or (6). Enforcement procedure, Jl1J1titrust, Byproduct or J. Randall Hall, Office of Nuclear discretion in these cases would be material, Classified information, Reactor Regulation, telephone (301) exercised by the Director, Office of Environmental protection, Nuclear 504-1336, U.S. Nuclear Regulatory Nuclear Reactor Regulation, or his materials, Nuclear power plants and Commission, Washington, DC 20555. designee. reactors, Penalty, Sex discrimination, A licensee who requests the NRC to Source material, Special nuclear SUPPLEMENTARY INFORMATION: forego enforcement of a TS or other material, Wmste treatment and disposal. Background license condition must document the Accordingly, the NRC Is adopting the safety basis for the request, including an following amendments to 10 CFR part 2; In July 1985, the NRC staff issued evaluation of the safety significance and internal guidance to address situations potential consequences of the proposed where a reactor licensee's compliance course of action, a description of with a Technical Specification (TS) or compensatory measures, a justification 58 FR 17321 other license condition may cause an for the duration of the request, the basis Published 4/2/93 unnecessary plant transient or for the licensee's conclusion that the Effective 4/2/93 unnecessarily prevent plant startup and request does not have fi potential Comment period expires 5/3/93 where, in such instances, the temporary adverse impact on the public health and exercise of discretion by the NRC not to enforce compliance may be appropriate. safety: and does not involve adverse* 10CFR Part2 That guidance has been revised consequences to the environment, and any other information the NRC staff RIN 3150*AE59 periodically with the latest revision deems necessary before making a . having been made in February 1990. decision to exercise discretion. Policy and Procedure for NRC the circumstances in which the NRC staff may exercise enforcement In each case where the NRC staff has Enforcement Actions; Policy discretion have been generally decided to exercise its enforcement Statement described in section Vll of the discretion, enforcement action will normally be taken for the root causes, to AGENCY: Nuclear Regulatory Enforcement Policy (10 CFR part 2, the extent violations were involved; that Commission. appendix CJ. In order to consolidate the description of all circumstances where led to the noncompliance at issue. Such ACTION: Policy statement: Modification enforcement discretion may be enforcement action is intended to and request for comments. exercised into one location, the emphasize that licensees should not rely on.the NRC's authority to exercise

SUMMARY

The NRC is modifying Commission has determined that a Supplement VI of its Enforcement discussion of the possibility of enforcement discretion u a routine

• substitute for compliance or for Policy to revise certain of the examples enforcement discretion for TS or other of severity levels for violations license condition compliance should requesting a license amendment.

Since this action concerns a general associated with the quality management also be placed in section vn of the program required by 10 CFR 35.32. The Enforcement Policy. In addition, Section statement of policy, no prior notice is examples of severity levels are used in VIII of the Enforcement Policy is being required and, therefore, this modified to make it clear that actions modification to the Enforcement Policy the enforcement process to provide taken by licensee employees pursuant to is effective March 17, 1993, guidance in determining the safety and such an exercise of discretion will not regulatory significance of a particular Paperwork R.eduction Act Statement violation. result in enforcement action against the individuals involved. Finally, to reflect This Policy Statement contains DATES: This revised policy statement is the information collection requirements information collection requirements that effective on April 2, 1993. Submit of this change, 10 CFR 2.8 is being are subject to the Paperwork Reduction comments on or before May 3, 1993. amended to reference that fact. Act of 1980 (44 U.S.C. 3501 et seq). Comments received after this date will The Commission believes that the These requirements were approved by be considered if it is practical to do so, exercise of enforcement discretion in the Office of Management and Budget but the Commission is able to assure this area is warranted to avoid under control number 3150-0136. consideration only for comments unnecessary plant transients, to reduce The public reporting burden for this received on or before this date. both operational and shutdown risk, collection of information ls estimated to Comments may be considered in future and to avoid unnecessary delays in average 40 hours per response, revisions of the statement of policy. 2-SC-114

PART 2

• STATEMENTS OF CONSIDERATION ADDRESSES: Send comments to: magnitude of overdose involved. Under programmatic weakness in the Secretary, U.S. Nuclear Regulatory the current examples, any failure to implementation of the quality Commission, Washington, DC 20555, follow quality management program management program. A lower Severity A1TN: Docketing and Service Branch. procedures resulting in an overdose of Level may be assigned to those events Deliver comments to One White Flint 50 percent or more is automatically a where simple human error results in an North, 11555 Rockville Pike, Rockville, Severity Level II event; any isolated violation despite the Maryland 20852, between 7:30 a.m. and misadministration not involving an development and implementation of a 4:15 p.m., Federal workdays. Copies of overdose of 50 percent or more is fully adequate quality management comments received may be examined at automatically a Severity Level m event, program as required by 10 CFR 35.32, the NRC Public Document Room, 2120 regardless of whether there is an including appropriate instruction, L Street, NW., (Lower Level), overexposure or underexposure. training, policies and procedures, Washington, DC. Neither of these examples considers written directives, and supervision.

FOR FURTHER INFORMATION CONTACT: the causes of the misadministration. However, such violations involving James Lieberman, Office of These examples do not provide for any assessment of the scope or magnitude of misadministrations with potential for Enforcement, U.S. Nuclear Regulatory residual consequences will be Commission, Washington, DC 20555, any programmatic deficiencies, nor do they depend, in any way, on whether or considered for a Severity Level m (301) 504-2741. categorimtion. SUPPLEMENTARY INFORMATION: On July not the misadministration represented 25, 1991, the Commission published in an isolated and inconsequential event The Commission, nonetheless expects

• the Federal Register (56 FR 34121) a resulting purely from human error. that all violations of NRC regulations final rule, effective January 27, 1992, While the consequences of a
• and the licensee's quality management requiring persons subject to the misadministration are important, as programs will be addressed with requirements of 10 CFR Part 35 to reflected in example A.4 for Severity appropriate corrective actions so as to establish a quality management program Level I which addresses provide a high degree of confidence that and meet certain reporting requirements misadministrations involving death or byproduct material or radiation from for misadministrations. AB part of that serious injury to a patient, it is byproduct material is administered to Notice, the Commission modified its appropriate in less consequential patients only as intended and directed Enforcement Policy to provide examples misadministrations to give by authorized user physicians. In this in Supplement VI of severity levels for consideration to the root cause in regard, the Commission emphasizes that potential violations associated with the determining the severity level. This all such violations are of concern, and new requirements. The examples of approach to enforcement is more likely to focus licensee attention on the need that repetitive Severity Level IV severity level are used in the violations may result in escalation of the enforcement process to provide to address programmatic deficiencies

                                            .with corrective action. Therefore,         sanctions applied, and could lead to the guidance in determining the safety and                                                   imposition of civil penalties or other regulatory significance of a particular       examples B.3 and C.6 are being revised to consider the degree of programmatic     sanctions, e.g., suspension or revocation violation. The enforcement action taken

• of a license, as the Commission may is, in part, based upon the severity level weakness in the causes of a misadministration. determine to be either necessary or decision. As a result of comments on the Under revised example B.3, Severity appropriate to enforce compliance.

rulemaking, NRC has reconsidered the severity level examples for Level II is assigned whenever a The determination of severity level misadministrations. misadministration occurs as a result of based on the degree of programmatic The NRC is revising examples B.3, a substantial failure to implement the weaknesses will be fact dependent. C.6, and D.4 of Supplement VI, which quality management program required While generally a single failure that are the examples of violations of by 10 CFR 35.32, regardless of whether resulted in a misadministration would Severity Levels II, m, and IV, or not an overdose of 50 percent or more not be indicative of a programmatic respectively. The basic purpose and is involved. The assignment of Severity weakness, depending on the thrust of the revisions is to provide Level II is no longer dependent on the occurrence of an overdose of at least 50 ci!cumstances, it may. For example, the greater emphasis, and attach greater ~Bll~re to train one technician may importance, to violations which are percent. Under revised example C.6, Severity *md1cate a programmatic weakness for a indicative of or flow from deficiencies small program or where the technician of a programmatic nature. Such Level lil is assigned: (1) Whenever there is a substantial failure to implement the not trained is the sole technician on a deficiencies are preventable and are weekend shift. more likely to have a widespread or quality management program required severe impact than are isolated mistakes by 10 CFR 35.32 even if there is no List of Subjects in 10 CFll Part 2 involving human error made in the resulting misadministration; (2) if treatment of individual patients. The . programmatic weakness in Administrative practice and revisions also reflect a reduced Severity implementation of the quality procedure, Antitrust, Byproduct Level assignment for individual management program results in a material, Classified information, Civil violations which represent isolated misadministration; or (3) if a penalty, Enforcement, Environmental mistakes or errors of limited misadministretion is not reported. protection, Nuclear materials, Nuclear consequences that qualify as reportable Example D.3, the example for a power plants and reactors, Penalty, Sex misadministrations but are not Severity Level IV violation, is being discrimination, Source material, Special indicative of or due to any revised to include instances where nuclear material, Violations, and Waste programmatic failure or weakness. failure to follow the quality treatment and disposal. The current examples for Severity management program, including Levels II and IIl, examples B.3 and C.6, procedures, results in a reportable reflect the assignment of Severity Level misadministration provided that such based on whether or not a failures are isolated, have limited misadministretion occurred and the consequences, and do not demonstrate a 2-SC-115

PART 2

• STATEMENTS OF CONSIDERATION 58 FR44610 Published 8/24/93 In reaction to the public concern Paperwork Reduction Act Statement Effective 8/24/93 about the implications of the 1990 Withdrawal of this policy statement Policy, the Commission initiated a removes information collection matters consensus-building process in July 1991 that were subject to the Paperwork to seek the advice of affected in*erests Reduction Act of 1980 (44 U.S.C. 3501 10CFR Part2 on a re-evaluation of the Policy. In et seq.). Office of Management and RIN 3150 -AE56 conjunction with the initiation of the Budget approval of the provisions consensus-building process, the contained in appendix B to 10 CFR part Withdrawal of Below Regulatory Commission placed a moratorium on 2 was allowed to expire on December Concern Policy Statements the implementation of the 1990 Policy. 31, 1992. The 10 CFR part 2 information When the consensus-building process collection requirements that remain in AGENCY: Nuclear Regulatory was terminated in December 1991 due Commission. effect were approved by the Office of to the difficulty of obtaining the Management and Budget approval ACTION: Withdrawal of policy participation of all affected interests in number 3150-0136.

statements. the process, the Commission . indefinitely extended the moratorium List of Subje1Cts in 10 CFR Part 2 SU!IIMARY: The Nuclear Regulatory on the implementation ofthe Policy. In Commission is formally withdrawing its Administrative practice and October 1992, the Congress enacted the procedure, Antitrust, Byproduct Below Regulatory Concern (BRC) policy Energy Policy Act of 1992 (H.~. 776), material, Classified information, statements. This action is necessary to and the bill was subsequently signed Environmental protection, Nuclear comply with provisions of the Energy into law by President Bush. Section* materials, Nuclear power plants and Policy Act of 1992. Specifically, this 2901 revoked the Commission's 1986 reactors, Penalties, Sex discrimination, action removes the.BRC Policy and 1990 BRC Policy Statements. Source material, Special nuclear Statement isslll!d.on July 3, 1990, and material, Waste treatment and disposal. the BRC Policy is11ued in 1986 The Commission formally withdraws concerning the submittal of petitions for the two BRC Policy Statements in For the reasons set out in the disposal of radioactive waste streams response to_ the Congressional action._ In preamble and under the authority of the below regulatory concern that were set a document published in the proposed Atomic Energy Act of 1954, as amended, out in the Commission's _regulations.*- rule section of this issue of the Federal the Energy Reorganization Act of.1974, R.egister, \he Commission also as amended, and 5 U.S.C. 552 and.553, EFFECTIVE DATE: This action is effective announces the termination of a- the NRC is adopting the following August 24, 1993. *rulemaking action that was initiated io amendment to 10 CFR part 2. FOR FURTHER INFORMATION CONTACT: implement the 1986 BRC Policy. Francis X. Cameron, Office of the Although section 2901 of thll Entlrgy GeneralCounsel, U.S. Nuclear Policy Act effectively revoke thll 19111>

• Regulatory Commission, Washington, BRC Policy Statement hy providing that it should have no further effect, it did DC 20555. Telephone (301) 504-1642.

not explicitly remove the Commission's SUPPLEMENTARY INFORMATION: Section 10 . obligation under section 10 of the Low-of the Low-Level Radioactive Waste Level Radioactive Waste Policy Policy Amendments Act (LLRWPAA) of Amendments Act of 1985 to develop 1985 directed the Commission to criteria and procedures for evaluating develop criteria and procedures to act 5BFR50635 exemption requests for specific Published 9/28/93 upon petitions "to exempt specific radioactive waste streams on an radioactive waste streams from expedited basis. Nor did the Act revoke . regulation * *

• due to the presence of
• the Commission's authority under the radionuclides * *
• in sufficiently low Atomic Energy Act to exempt classes of 10CFR Part2 concentrations or quantities as to be materials from licensing. The RIN 3150-AES&

below regulatory concern." The Commission does not believe that it is Commission responded to this statutory necessary at this time to initiate the Withdrawal of Below Regulatory provision by issuing a policy statement development of new generic criteria and Concern Pclicy Statements on August 29, 1986 (51 FR 30839) that . procedures to replace those established contained criteria for evaluating such in the 1986 Policy Statement that Correction petitions. These criteria and the . implemented section 10 of the procedures for NRC staff

• LLRWPAA. The Commission believes In rule document 93-20403 beginning implementation are set forth in 10 CFR  : that the current situation could allow on page 44610 in the issue of Tuesday, part 2, appendix B, of the Commission's these types of exemption requests to be August 24, 1993, make the following regulations. In order to establish a effectively handled on a case-by-case correction:

consistent risk framework for making basis using the Commission's existing PART 2 [CORRECTED] regulatory exemption decisions across authority under the Atomic Energy Act the broad spectrum of activities and the existing general procedures for On page 44611, in the 1st column, m regulated by the Commission, the the expedited processing of petitions for the Authority, in the 2d paragraph, in Commission later issued a second rulemaking. This is consistent with the the 20th line, "2.206" should read policy statement addressing the below Commission's policy to address "2.606". regulatory concern issue, "General individual exemption requests using the Statement of Policy on Below criteria and guidance in existence prior Regulatory Concern," July 3, 1990 (55 to the July 3, 1990, BRC Policy FR27522). Statement. 2-SC-116

PART 2

• STATEMENTS OF CONSIDERATION 58 FR 67657 adjudications on materials licenses are The Commission did not distum the Published 12/22/93 set forth in subpart L to part 2. When presiding officer's ruling, but it directed Effective 1/1 /94 the rules do not require the Commissi"on the staff to prepare a proposed rule that to publish notice of all proposed would make clear that requesters are Standards for Protection Against licensing actions, the requirements for indeed required 'to file at the earliest of Radiation; Removal of Expired Material requesting a hearing are tied to the date the three events described above. Such on which a requester receives actual a notice was published in the Federal See Part 20 Statements of Consideration notice of such actions. Register on September 29, 1993, at 58 Prior to this rule change, the FR50858.

regulation stated that if Federal Register notice of en action is not published, Anal)*sis of Public Comments then a request for a*hearing must be Two comments were received on the filed within "the earlier of-{i) Thirty proposed rule, but neither one was (30) days after the requestor receives directed to the actual subject of the actual notice of a pending application or rulemaking, i.e., whether the NRC an agency action granting an should continue to allow someone with

                                           .:ipplication; or (ii) One hundred and         actual knowledge of an application to 59 FR 29187                                                                                wait for that application to be granted eighty (1BO) days after agency action Published 6/6/94 Effective 7/6/94 granting en application."                      before requesting a hearing.

In August, 1992, the presiding officer in a materials licensing proceeding was 1. Comment of Kerr-McGee Corporation faced with a case in which a requester The first comment, from Kerr-McGee 10CFR Part2 with actual notice of a license Corporation, endorsed the proposed RIN 3150-AE67. application filed in *1959 waited to ask rule, but noted that the new language for a hearing until the NRC granted the "seemingly leaves the door open for Informal Hearing Procedures for application, three and a half years later. filing of requests for hearing almost at Materials Licensing Adjudications The licensee and the NRC staff objected will." Kerr-McGee asserted that the rule AGENCY: Nuclear Regulatory that Lhe request should have been filed is hinged on when the requester Commission. within 30 days of the requester's "receives actual notice," an ACTION: Final rule. receiving actual notice of the "ambiguous" term that "is not related to application. (In other words, they were the time an actual amendment

SUMMARY

The Nuclear Regulatory arguing that the rule was meant to allow application is filed."

Commission is amending its regulations persons to file within 30.days of The response to this comment is that to provide that persons requesting a receiving actual notice of the grant of an the NRC's proposed rule was directed to hearing in certain materials license application only if they were unaware . a specific and nanow issue--wbether a proceedings must file their requests until then of the pendency of the potential requester with actual notice of within 30 days of receiving actual notice application.) The requester responded an application should be able to delay of the pendency of the license that the regulation contained no such filing a hearing request until the application, or, if the person does not implicit condition, and instead gave application is granted. The notice did learn about the application until it has requesters a choice: Either they could not contemplate revising the rule to been granted, within 30 days of file within 30 days of receiving actual change the concept of making the receiving actual notice of the grant of notice of the application, or they could receipt of actual notice the basis of the the application. No hearing requests wait until the grant of the application time for filing a hearing request. filed more than 180 days after the grant and then file within 30 days of learning of the agency's action. 2. Comment of Ohio Citizens for of the application will be entertained. Responsible Energy (OGRE) The amendment applies only to The presiding officer sustained the materials licensing actions which ari;i requester's position. He observed that The second comment was from Ohio the NRC staff and the licensee were in Citizens for Responsible Energy (OCRE), not of sufficient importance to warrant notice in the Federal Register. The rule effect arguing that the regulation should which objected to the portion of the change eliminates en ambiguous be read as though it required the request regulation that bars petitions filed more provision in the Commission's current to be filed at the eBl'liest of three events: than 180 days after the NRC's grant of regulations end serves to ensure that 30 days after receipt of actual notice of an application. OCRE asserted that it hearing requests are filed as promptly as the filing of the application; 30 days was conceivable that someone would possible, in order to promote the timely after receipt of actual notice of the grant not learn of a licensing action until after identification and resolution of of the application; and 1BO days after the passage of 180 days, and would by problems with or objections to proposed the grant of the application. He added then, through no fault of his or her own, licensing actions. that the Statement of Considerations have lost all opportunity to request a accompanying the rule had referred to hearing. EFFECTIVE DATE: July 6, 1994. requests for hearing beiJig timely if filed OCRE's point, like Kerr-McGee's, goes FOR FURTHER INFORMATION CONTACT: within 30 days of a requester's receiving beyond the scope of the quite narrow Peter G. Crane, Office of the General actual notice ... of a licensing action." change that the NRC proposed. The Counsel, U.S. Nuclear Regulatory The presiding officer offered a possible Commission's notice made clear that the Commission, Washington, DC 20555, rationale for the two separate windows issue to be resolved was whether Telephone: 301-504-1634. of opportunity: a potential requester, potent.ial requesters with actual notice SUPPLEMENTARY INFORMATION: hopeful that an application might not be of an application for a particular approved, would not have to file a licensing action were intE1nded to have Background hear,ing request. until the grant of the two bites at the appl~, Ol'*should instead The Commission's rules governing application eliminated doubt as to the be required to file for a hearing at their informal hearing procedures of NRC's intent. earliest opportunity. The concept of a 2-SC-117

PART 2

• STATEMENTS OF CONSIDERATION 180-day cutoff was nev.er idc~tified as List of Subjects in 10 CFR. Part 2 Publications Services, Office of being subject to recons1derahon by the Administration, Telephone (301) 415-Administrative practice and 7162 or Toll Free 800-368-5642.

Commission. procedure, Antitrust, Byproduct Having considered the comments SUPPLEMENTARY INFORMATION: received. and finding that neither of material, Classified infom1ation, them s1,1ggests a flaw in the specific Environmental protection, Nuclear Background correction proposed in the rule, the materials, Nuclear power plants and reactors, Penalties, Sex discrimination, On May 11, 1994 (59 FR 24371), the Commission bas determined that the NRC published a notice of proposed Source material, Special nuclear following final rule should be rulemaking to amend 10 CFR 2.Q02(g) to material, Waste treatment and disposal. promulgated. reduce the frequency of the summary For the reasons set out in the report on the status of petitions for Environmental Impact: Categorical preamble and under the authority of the Exolusiun. rulemaking from quarterly to Atomic Energy Act of 1954, as amended; semiannually. This report, which was The NRC has determined that this the Energy Reorganization Act of 1974, developed in response to a petition for regulation is the typ? of action . as amended; and 5 U.S.C. 552 and 553, rulemalcing (PRM-2-4), appears as part described in categoncal exclusion 10 the NRC is adopting the following of the NRC Regulatory Agenda. The CFR:51,22(c)(1). Therefore. neither an amendments to 10 CFR part 2. NRC Regulatory Agenda is a environmental impact statement nor an compilation of all rules on which the environmental assessment has been NRC has recently completed action, has prepared for this final rule. proposed action, or ts*considering . Paperwork Reduction Act Statement action, and all petitions for rulemaking 59 FR36026 that have been received by the This rule does not contain a new or Published 7/15/94 Commission and are pending amended information collection Effective 8/15/94 disposition. requirement subject to the Papenvork The NRC prepares and submits an Reduction Act of 1980 (44 U.S.C. 3501 Timeliness In Decommissioning of agenda of its rulemaking activity for et seq.). Existing requirements were Materials Facilities inclusion in the Unified Agenda of approved by the Office of Management Federal Regulations, which is updated and Budget, approval number 3150- See Part 30 Statements of Consideration semiannually and published in the 0136. Federal Register. The NRC meets the Regulatory Analysis public information requirements of the Regulatory Flexibility Act (5 U.S.C. 602) The Nuclear Regulatory Commission and Executive Order 12866 through its prepared a brief regulatory analysis for 59FR44894 Published 8/31/94 participation in the Unified Agenda of the proposed rule: Neither of the commenters having discussed the Effective 9/30/94 Federal Regulations. The Unified regulatory analysis, the Commission has Agenda of Federal Regulations contains not considered it necessary to prepare a the same information concerning NRC 10CFR Part2 rulemaking activity that is published in separate analysis of the final rule. RIN 3150-AE85 the NRC Regulatory Agenda. Regulatory Flexibility Certification Public Comment As required by the Regulatory Summary Report on the Status of Flexibility Act of 1980 (5 U.S.C.. 605(b)). Petitions for Rulemaking; Frequency The comment period for the proposed the C.O:mmission certifies that this rule amendment closed June 10, 1994. The will not have a significant economic AGENCY: Nuclear Regulatory NRC received two public comments on impact on a substantial number of small Commission. the proposed action. Both commenters entities. The rule sets forth the time ACTION: Final rule. indicated their support for the reduction frame within which a person other than in the administrative burden and

SUMMARY

The Nuclear Regulatory publication costs that would result from an applicant must file a request for a Commission (NRC) is amending its the reduced frequency of publication.

hearing in a licensing proceeding held regulations to reduce the frequency of under the informal procedures set forth The commentars also indicated that the summary report on the status of they would welcome the availability of in 10 CFR part 2, subpart L. The rule petitions for rulemaking, which is does not impose any obligations on the NRC Regulatory Agenda through included in the NRC Regulatory electronic access. regulated entities that may fall within Agenda. from quarterly to semiannually. the definition of "small entities" as set One commenter expressed concern This action is necessary because the that the rule would be implemented forth in section 601(3) of the Regulatory NRC has reduced the publication of the Flexibility Act, or within the definition before the NRC Regulatory Agenda is NRC Regulatory Agenda from quarterly made available through electronic of "small bw;iness" as found .in section to semiannually as the status of 3 of the Small Business Act, 15 U.S.C. communications. The NRC staff is rulemaking actions and petitions for continuing to explore the most 632 or within the small business size rulemaking is not subject to frequent staddards contained in 13 CFR part 121. appropriate alternatives for making the change. The final rule reduces the level NRC Regulatory Agenda available Backlit Analysis of NRC staff effort, paperwork. and electronically. When the most distribution costs. appropriate vehicle is selected and This rule does not involve.any new EFFECTIVE DATE: September 30, 1994. provisions which would impose backfits implementad, the NRC will announce as defined in 10 CFR 50.109(a)(1). FOR FURTHER INFORMATION CONTACT: the electronic availability of the NRC Accordingly. no backfit analysis David L Meyer, Chief, Rules Review Regulatory Agenda in the Federa.l pursuant to 10.CFR 50.109.(c) is and Directives Branch, Division of Register. The NRC notes that, as 1s required. Freedom of Information and current practice, an interested person 2-SC-118

PART 2

• STATEMENTS OF CONSIDERATION may obtain information concerning NRC Regulatory Analysis

SUMMARY

The Nuclear Regulatory rulemaking procedures or the status of The NRC has not prepared a ComDiission is-amending its regulations any rule contained in the NRC regulatory Impact analysis for this-final regarding petitions for rulemakjng to Regulatory Agenda by contacting the rule because it Is an administrative *

• indicate the current title of the Rules Review and Directives Branch, action that would reduce the frequency organimtion within the NRC from (301) 415-7158. Perso.ns outside the of the summary report on the status of . which a prospective petitioner may seek Washington, DC, metropolitan area may petitions for rulemaking, as included in consultation before filing a petition for call toll-free 80D-368-5642. For further the NRC Regulatory Agenda, from rulemaking. This amendment also information on the substantive content quarterly to semiannually. supplies the current telephone numbers of any rule listed in the agenda, a person -~r a_~~~v.eli* pe~~ol!_e!~o c~ntact .

may contact the individual listed under Regulatory Flexibility Certification the NRC before iling a petition for the "Agency Contact" heading for that As required by the Regulatory rulemaking.

• rule. Flexibility Act (5 U.S.C. 605(b)), the EFFECTIVE DATE: November 25, 1994.

In addition, on }Wl8 8, 1994, the Commission certifies that this rule does FOR FURTHER INFORMATION CONTACT: Federal Register became available on not have a significant economic impact Michael T. Lesar, Chief, Rules Review Internet in a multitiered subscription on a substantial number of small . Section, Rules Review and Directives service. This electronic version captures entities. This is an administrative action Branch, Division of Freedom of the Unified Agenda of Federal that reducos the frequency of the Information and Publications Services, RegulaUons, which is published in the summary report on the status of Office of Administration, U.S. Nuclear Federal Register. The Unified Agenda of petitions for rulemaking, as included In Regulatory Commission, Washington, Federal Regulations includes a section the NRC Regulatory Agenda, from DC 20555, Telephone (301) 415-7163. on the status of NRC's rulemalcings. quarterly to semiannually. This action One commenter expressed opposition would have no economic impact on any SUPPLEMENTARY INFORMATION: to the proposed PUie if it would cause NRC licensee, including small entities. Background delays in the processing of new Bacldit Allalysi11 The Nuclear Regulatory Commission petitions received by the NRC. The NRC is revising the regulations in 10 CFR notes that the processing of petitions for The NRC has detennined that the backfit rule, 10 CFR 50.109, does not Part 2 that pertain to filing of petitions rulemaking is in no way related to the for rulemaking to reflect a name change frequency with which the NRG apply to this fmal rule and, therefore, that a backlit analysis is not- required for of the NRC organization from which a Regulatory Agenda is published. prospective petitioner may consult with Therefore, the adoption of this rule this final rule because these * . amendments do not involv8' any the NRC before filing a petition for would not cause any delays in rulemeking. This action indicates that processing new petitions received by* pro,1sions that would impose backfits . as defined in 10 CFR 50.109(a)(1). the name of the Regulatory Publications theNRC. Branch, in the Division of Freedom of List of Subjects in 10 CFR Part Z Information and Publications Services, The Final llule Office of Administration, has been The content and the status of the Administrative practice and changed to the Rules Review and rulemaking actions and petitions for procedure, Antitrust, Byproduct Directives Branch (RRDB). The current rulemaking summarized in the NRC materiel, Classified information, telephone number on which a Regulatory Agenda do not change Environmental protection, Nuclear prospective *petitioner may directly frequently enough to justify a quarterly materials, Nuclear power plants and contact RRDB is now (301) 415-7158. publication. Therefore, the NRC will reactors, Penalties, Sex discrimination, The public access toll free telephone publish the NRC Regulatory Agenda in Source material, Special nuclear number, (800) 368-5642, is unchanged. January and July of each year. Section material, Waste treatment and disposal. Because this is an amendment dealing 2.802(g), concerning the frequency of For the reasons set out in the with *agency practice and procedures, the status of petitions for rulemaking, is preamble and under the authority of the the notic~ and comment provisions of revised to reflect this change. The NRC Atomic Energy Act of 1954, as amended, the Administrative Procedure Act do will continue to publish an updated the Energy Reorganization Act of 1974, not apply pursuant to 5 U.S.C. agenda of its rulemaking actions in the as amended, and 5 U.S.C. 552 and 553, 553(b)(A). The amendment is effective Unified Agenda of Federal Regulations the NRC is adopting the following upon publication in the Federal each April and October. amendment to 10 CFR Part 2. Register. Good cause exists to dispense with Ute usual 30-day delay in the Environmental Impact: Categorical effective date because the.amendment is Exclusion of a minor and administrative nature The NRC has determined that this, 59 FR60551 dealing with a change to an final rule is the type of action described Published 11/25/94 organizational name and telephone in categorical exclusion 10 CFR Effective 11 /25/94 number. 51.22(c)(l). Therefore, neither an Environmental Impact: Categorical environmental impact statement nor an environmental assessment has been 10CFR Part2 Exclusion prepared for this final rule. Thi! NRC has determined that this RIN 3150-AF25 final rule is the type of action described Paperwork Reduction Act Statement Change in Organizational Title and in categorical exclusion 10 CFR This final rule contains no 51.22(c)(2). Therefore, neither an information collection requirements and Telephone Numbers environmental impact statement nor an therefore is not subject to the AGENCY: Nuclear Regu\atory environmental assessment has been requirements of the Paperwork Commission. prepared for this final rule. Reduction Act of 1980 (44 U.S.C. 3501 ACTION: Final rule. et seq.). 2-SC-119

PART 2

• STATEMENTS OF CONSIDERATION Paperwork Reduction Act Statement DATES: This revision is effective on penalties for violations involving November 28, 1994. discrimination. A paragraph is being This final rule does not contain a new Comments are due on or before added to B2(b) of Section VI of the or amended infonnation collection December 28, 1994.

requirement subject to the Paperwork __ Enforcement Policy to provide an ADDRESSEES: Send written comments to: explanation of the corrective action Reduction Act of 1980 (44 U.S.C. 3501 adjustment factor as applied to The Secretary of the Commission, U.S. et seq.). Existing requirements were Nuclear Regulatory Commission, discrimination cases. The NRC can approved by the Office of Management Washington, DC 20555. Attn: Docketing require broad remedial action to and Budget, approval number 3150- and Service Branch. Deliver comments improve the workplace environment, 0036. to: 11555 Rockville Pike, Rockville, but it cannot require a licensee to List of Subjects in 10 CFR Part 2 Maryland 20852, between 7:45 am and provide the individual with a personal 4:15 pm on Federal workdays. remedy. The Department of Labor (DOL) Administrative practice and Copies of comments may be examined has the authority to require that a procedure, Antitrust, Byproduct at the NRC Public Document Room, personal remedy be provided. A material, Classified information, 2120 L Street, NW. (Lower-Level), violation involving discrimination is not Environmental protection, Nuclear Washington, DC. completely corrected without the materials, Nuclear power plants and FOR FURTHER INFORMATION CONTACT: personal remedy, and the chilling effect reactors, Penalties, Sex discrimination, James Lieberman, Director, Office of may well continue if a personal remedy Source*material, Special nuclear Enforcement, U.S. Nuclear Regulatory is not provided. Thus the Commission material, Waste treatment and disposal. Commission, Washington, DC 20555 does not believe that any proposed (301)-504-2741. penalty should be mitigated if a For the reasons set out in the SUPPLEMENTARY INFORMATION: On July 6, personal remedy is not provided. A civil preamble and under the authority of the 1993, the NRC's Executive Director for penalty normally should be mitigated Atomic Energy Act of 1954, as amended; Operations established a review team to for corrective action only if the licensee the Energy Reorganization Act of 1974, reassess the NRC's program for takes prompt, comprehensive corrective as amended; and 5 U.S.C. 552 and 553; protecting allegers against retaliation. action which (1) addresses the broader the NRC is adopting the following The review team report, NUREG-1499, 1 environment for raising concerns in the amendment to 10 CFR part 2. Reassessment of the NRC's Program for workplace; and (2) provides a remedy Protecting Allegers Against Retaliation, for the particular discrimination at was published in January 1994. The issue. In the determination of whether team report summarizes current . or not a remedy has been provided, the processes, gives an overview of current NRC considers whether a settlement has problems, and gives recommendations been reached or if a remedy ordered by for each area that is discussed. The NRC DOL has been implemented. Where a is adding additional guidance in its remedy has been accepted by DOL, NRC 59 FR60697 Enforcement Policy to address intends to defer to DOL on the adequacy Published 11/28/94 Recommendations II D.2, D.5., and D.6 of the remedy. Cases where a licensee Effective 11 /28/94 of the report relating to enforcement offers an employee a reasonable remedy, Comment period expires 12/28/94 actions for violations involving but the employee declines, will be discrimination. handled on a case by case basis. The NRC Enforcement Policy is The promptness and scope of 10CFR Part2 corrective action should also be co~i_fied at 10 CFR Pw:t 2, Appendix C considered in applying the corrective Policy and Procedure for Enforcement to provide widespread dissemination of action factor. If settlement occurs early Actions; Policy Statement, the Commission's Enforcement Policy. in the administrative process, mitigation Discrimination However, this is a policy statement and may be warranted based on corrective not a regulation. actions as the chilling effect may have AGENCY: Nuclear Regulatory Commission. Civil Penalty Adjusbnent for Corrective been minimized by the promptness of

---

Action the remedy and remedial action.

ACTION: Policy statement; revision. Corrective action is a significant factor However, if settlement occurs after the

SUMMARY

The Nuclear Regulatory in mitigation or escalation of base civil evidentiary record closes before the Commission (NRC) is amending its Administrative Law Judge, then any General Statement of Policy and 1 Copies of NUREG-1499 may be purchased from existing chilling effect may have existed Procedure for Enforcement Actions the Superintendent of Documents, U.S. Government for a substantial time, and the (Enforcement Policy) to address issues Printing Office, Mail Stop SSOP, Washington, DC . complainant may have had to spend associated with discrimination. A 20402-9328. Copies are also available from the

• substantial resources to present his or change is also being made to address National Technical Information Service, 5285 Port her case. Under such situations Royal Road, Springfield, Virginia 22161. A copy is Commission review of certain cases also available for inspection and copying for a fee mitigation normally would not be involving reports of the Office of in the NRC Public Document Room, 2120 L Street, warranted. If the licensee does not take Investigations. NW. (Lower Level), Washington. DC 20555-0001. broad corrective action until after a 2-SC-120

PART 2

• STATEMENTS OF CONSIDERATION Secretary of Labor's decision, and the reemphasize that discrimination will correct a hostile work environment can Secretary's decision upholds an not be tolerated. This information might have a potentially significant adverse Administrative Law Judge's finding of be publicized by posting a notice, a impact on employees raising issues. In discrimination, corrective action may be newsletter, a handout, or some other such cases employees may not believe untimely and escalation warranted. If means, but the information should be that they are free to raise concerns.

the licensee chooses to litigate and conveyed in a manner designed to Supplement VII does not currently eventually prevails on the merits of the minimize the chilling effect on others. A address threats of discrimination or case, then enforcement action will not similar approach may be taken when a restrictive agreements, both of which are be taken and, if already initiated, will be person comes to the NRC without going violations under NRC regulations such withdrawn. Assuming that evidence of to the DOL. as 10 CFR 50.7(f). Example C(lO) is discrimination exists, enforcement Even if no formal enforcement action being added as a Severity Level III action that emphasizes the value of is taken, the NRC would issue a letter, example to address such violations. promptly counteracting the potential as is normal practice in similar cases, to This type of violation is being chilling effect is warranted. emphasize the need for lasting remedial categorized at a Severity Level III Enforcement Discretion action. The licensee would also be because the potential impact on future informed that future violations may protected activity may be of significant It is recognized that there are some result in enforcement action. In certain cases of discrimination where regulatory concern. cases, the NRC may also consider enforcement action may not be entering into a consent order with the Some discrimination cases may occur warranted. Paragraph B(7) is being licensee, as part of the settlement which, in themselves, do not warrant a added to Section VII to provide an process, to address remedial action. Severity Level III categorization. explanation of the types of cases in Whether the exercise of discretion is Example D(6) is being added as a which the NRC may refrain from taking appropriate will depend on the Severity Level IV example to address enforcement action and those in which circumstances. For example, normally these situations. An example of such a the NRC normally would not exercise enforcement discretion would not be case might be a single act of such discretion. A licensee who, appropriate for cases that involve: (1) discrimination involving a first-line without the need for government Allegations of discrimination as a result supervisor, in which the licensee intervention, identifies an issue of of providing information directly to the promptly investigates the matter on its discrimination and takes corrective NRC; (2) allegations of discrimination own initiative, takes prompt, decisive action to address both the particular caused by a manager above first-line corrective action to limit the potential situation and the overall work supervisor (consistent with the current chilling effect, and thereby provides a environment is helping to establish a Enforcement Policy classification of clear message to other supervisors and .safety-conscious workplace. Aggressive Severity Level I or II violations); (3) employees that such conduct will not be licensee follow-up also provides a allegations of discrimination where a tolerated. Another example might message that retaliation is not history of findings of discrimination (by involve a threat of adverse action acceptable within its workplace. the DOL or the NRC) or settlements against an employee for going around Assuming that these actions are suggest a programmatic rather than an reasonable and effective, NRC the supervisor to raise a concern; if the isolated discrimination problem; (4) licensee took prompt, aggressive enforcement action may not be allegations of discrimination which warranted. corrective action before any adverse. Another situation in which appear particularly blatant or action was taken toward the employee, enforcement may not be warranted is egregious.2 In addition enforcement such a case might be considered as where a complaint is filed with the discretion normally would not be having minimal potential for a DOL, but the licensee settles the matter exercised for cases where the licensee widespread chilling effect. These cases before the DOL Area Office makes a does not appropriately address the would be categorized at a Severity Level finding of discrimination. Alternatively, overall work environment (e.g. by using IV because they are of more than minor if a finding is made against the licensee, training, postings, revised policies or concern and, if left uncorrected, could the licensee may choose to settle before procedures, any necessary disciplinary lead to a significant regulatory concern. the evidentiary hearing begins. An NRC action, etc. to communicate corporate Therefore, the Enforcement Policy is policy of not normally citing violations policy against discrimination). being changed to provide the flexibility in such cases might encourage licensee Severity Levels to classify less significant settlements, thereby reducing the discrimination violations as Severity potential for chilling effect. Settlements The existing examples of harassment Level IV. Such cases would normally be also provide a more timely remedy for and intimidation in Supplement VII of considered for exercising enforcement the complainant and may be used to the NRC Enforcement Policy focus on discretion if warranted under section demonstrate the licensee's commitment the level of management involved in the VII B(7). However, citations would to a retaliation-free environment. discrimination. Additional examples are normally be made if one of the four Therefore, the NRC may exercise its warranted to address other exceptions in that section were discretion not to take enforcement considerations associated with applicable. action when the licensee has publicized discrimination. Example B(9) will be (1) that a complaint of discrimination added as a Severity Level II example to Miscellaneous for engaging in protected activity was address violations involving a hostile The Enforcement Policy is also being made to the DOL; (2) that the matter was work environment. Such a violation may be very significant because the changed to reflect current Commission settled to the satisfaction of the employee (the terms of the specific failure by licensee's management to practice on consultation concerning settlement agreement need not be proposed enforcement actions involving posted); and (3) that if the DOL Area 2 While enforcement action would normally be or relating to Office of Investigation (OI) warranted in these (our types of cases, depending reports. This change is being made to Office found discrimination, the on the circumstances mitigation for corrective licensee has taken action to positively action may be appropriate. Section III. 2-SC-121

PART 2

• STATEMENTS OF CONSIDERATION Paperwork Reduction Act Statement SUPPLEMENTARY INFORMATION: commenters indicated that applying a gross receipts standard to a This final policy statement does not Background manufacturing concern resulted in an contain a new or amended information In 1983, the NRC surveyed its adverse impact on e manufacturer. The collection requirement subject to the materials licensees to create an SBA size standards for manufacturers Paperwork Reduction Act of 1980 (44 economic profile sufficient to consider are prescribed in terms of a maximum U.S.C. 3501 et seq.). Existing regulatory alternatives tailored to the number of employees rather than in requirements were aproved by the size of the licensee. After analyzing the terms of gross receipts.

Office of Management and Budget, data and consulting with the Smell The NRC conducted a survey to approval number 315Q--0136. Business Administration (SBA), the update the economic profile of its List of Subjects in Part 2 NRC developed a proposed size materials licensees. The purpose of this standard that would be appropriate to survey was to evaluate the continued Administrative practice and use in determining which of its efficacy of NRC's size standards and to procedure, Antitrust, Byproduct licensees would qualify os smell entities obtain the information needed to material, Classified information, for the purposes of compliance with the determine the necessity and effect of a Environmental protection, Nuclear Regulatory Flexibility Act. The NRC separate standard for manufacturers materials, Nuclear power plants and published its proposed size standard for within the context of the nuclear reactors, Penalty, Sex discrimination, notice and comment in the Federal

• industry.

Source material, Special nuclear Register of Mey 21, 1985 (50 FR 20913). The SBA adjusted its receipts-based material, Waste treatment and disposal.

• After considering the comments size standard levels to mitigate the received, the NRC adopted its final size effects of inflation from 198~ to the standards as noted in the Federal present in a final rule published in the Register of December 9, 1985 (50 FR Federal Register of April 7, 1994 (59 FR 50241). In the Federal Register of 16513).

November 6*, 1991 (56 FR 56671), the Public Comment NRC restated the size standards to include the Regulatory Flexibility Act's The comment period on the proposed definition of small governmental rule closed December 30, 1994. The jurisdiction. To further improve clarity, NRC received two letters of public &OFR 18344 the NRC changed the presentation of the comment on this action. size standards to conform to the listing One commenter objected to the Published 4/11/95 inclusion of a size standard based on the Effective 5/11/95 of definitions of smalfentities in the Regulatory Flexibility Act. number of employees for qualification of a manufacturing concern as a small The Proposed Rule entity in the NRC's regulatory programs 10CFRPart2 On November 30, 1994 (59 FR 61293), and the assessment of reduced annual the NRC published a proposed rule to fees. The commenter stated that the total RIN 3150-AF24 amend the NRC's size standards. The employee population of a manufacturer NRC Size Standards; Revision NRC proposed to establish a separate has little bearing on revenue potential

     --------**- ----- --                 standard to be used to determine               end revenue has little bearing on the AGENCY: Nuclear Regulatory                 whether a licensee who is a                    risk to public health end safety. The Commission.

• manufacturer would qualify as a small commenter believes that although ACTION: Final rule. entity and to adjust the receipts-based employee population may be a standard to account for the effects of consideration, it must be considered in

SUMMARY

The Nuclear Regulatory conjunction with revenue produced and inflation since 1985. In addition, the Commission (NRC) is amending the NRC proposed to eliminate the separate with the complexity of the operation in NRC's size standards used to qualify an $1 million size standard for private determining size standards. The NRC licensee as a "small entity" under practice physicians and apply the . commenter also asserts that because the Regulatory Flexibility Act. This revised receipts-based size standard of manufacturers are authorized to possess action is necessary to establish a $5.million to this class oflicensees. By significant quantities of multiple separate standard to be used to amending the size standards through isot~pes, both as sealed sources and determine whether a licensee who is a rulemaking, the NRC indicated its intent loose materiel for use in the manufacturer would qualify as a small to codify NRC's size standards in 10 manufacture and distribution of entity, to adjust the receipts-based CFRpart2. products, they present a much higher standard to account for the effects of As discussed in the preamble to the risk then entities that hold a license for inflation since 1985, and to eliminate proposed rule, these amendments were possession and use*ofsealed sources.

the separate $1 million size standard for developed after several factors indicated The commenter states that the loss of private practice physicians and apply that some adjustments to the NRC's size revenue from manufacturers categorized the revised receipts-based size standard standards.were desirable. as small entities will have to be made of $5 million to this class of licensees. The NRC received a number of up by small licensees who may have EFFECTIVE DATE: May 11, 1995. comments concerning its size standards only one or two devices on site. and the failure of the NRC to promulgate The NRC Is retaining o seporole FOR FURTHER INFORMATION CONTACT: a size standard that differentiates standard based on the number of Michael T. Lesar, Chief, Rules .Review employees for manufacturers in the final Section, Rules Review and Directives between manufacturing entities and rule bec11use t.his standard is required by Branch, Division of Freedom of service providers in response to the the Small Business Act (15 U.S.C. 632 Information and Publications Services, final rule implementing Public Law (a)(2)). This provision prohibits a Office of Administration, telephone 101-508 (56 FR 31472; July 10, 1991, (301) 415-7163. and subsequent years). These 2-SC-122

PART 2

• STATEMENTS OF CONSIDERATION Federal department or agency from standard of $5 million to this class of Regulatory Flexibility Certification prescribing a size standard for licensees. This mirrors the revised SBA As required by the Regulatory categorizing a business concern as a *standard of $5 million for medical Flexibility Act of 1980, 5 U.S.C. 605(b),
• small business concern unless the practitioners. For greater clarity, the the Commission certifies that this rule standard provides for determining the NRC has included a definition of the does not have a significant economic size of a manufacturing concern based term receipts in the final rule. impact on a substantial number of small upon employment. The survey of materials licensees entities. The final rule is administrative One commenter was pleased to see indicated that 26 percent qualified as in that it amends the criteria the NRC that the NRC raised the size standard for small entities undJ!r the NRC standards uses in determining which of its private practice physicians from $1 being replaced by this rule. Under the licensees qualify as small entities for the million to $5 million. However, the size standards adopted in this purposes of compliance with the commenter indicated that this action document, 35 percent of these licensees Regulatory Flexibility Act. The did not go far enough in addressing the would qualify as small entities, an amended size standards conform to assessment of user fees. The commenter increase of 9 percent. When NRC SBA's revised standard!! and result in an suggested that the NRC consider adopted its size standards in 1985, the
• increase in the number of NRC licensees evaluating the gross receipts of NRC staff estimated that approximately that would qualify as small entities.

departments within a medical facility 35. percent of the materials licensees that utilize NRC services and not the would qualify as small entities. Backfit Analysis overall receipts of the facility. The The Small Business Credit and The NRC has determined that the commenter contends that if the NRC Business Opportunity Enhancement Act backfit rule, 10 CFR 50.109, does not focused on the smaller entity within the of1992(Pub.L.102-366)amendedthe apply to this final rule and. therefore, license, many licensees would qualify Small Business Act concerning the that a backfit analysis is not required for for the small business exemptions and establishment of agency-specific small this final rule because these would pay fees.based on the actual business size standards. The NRC size amendments do not impose any revenue generated under the license. standards were developed so as-to meet provisions that would impose backfits The NRC notes that the Small the criteria specified in Pub. L. 102-366. as defined in 10 CFR 50.109(a)(l). Business Act establishes criteria for a As required by Pub. L. 102-366, the small business concern. To qualify as a NRC size standards were approved by List of Subjects in 10 CFR Part 2 small business concern, the concern the Administrator, SBA. Administrative practice and must be independently owned and This final rule also codifies NRC's procedure, Antitrust, Byproduct operated and not dominant in its field size standards in part 2 of the material, Classified information, of operation (15 U.S.C. 632 (a)(l)). A Commission's regulations. Previously, Environmental protection, Nuclear department of a medical facility does NRC's size standards had been materials;Nuciear power plants and not meet this criterion. The NRC has published in the notices section of the reactors, Penalties, Sex discrimination, indude*d language in the final rule to Federal Register.

• Source material, Special nuclear address this type of situation. material, Waste treatment and disposal.

In response to each of the comments, Environmental Impact: Categorical Exclusion For the reasons set out in the the NRC further emphasizes that the purpose of this rule is to amend the size preamble and under the authority of the The NRC has determined that this standards used by the NRC to qualify an Atomic Energy Act of 1954, as amended: final rule is the type of action described NRC licensee as a "small entity" under the Energy Reorganization Act of 1974, in categorical exclusion 10 CFR the Regulatory Flexibility Act. The 51.22(c)(1). Therefore, neither an as amended: and 5 U.S.C. 552 and 553; application of these standards in the fee environmental impact statement nor an the NRC is adopting the following schedule rulemaking, or any other environmental assessment has been amendment to 10 CFR part 2. rulemaking proceeding, is beyond the prepared for this final regulation. scope of this rule. Paperwork Reduction Act Statement The Final Rule This final rule does not contain a new The NRC is adopting a size standard or amended information collection of 500 or fewer employees for business requirement subject to the Paperwork concerns that are manufacturing Reduction Act of 1980 (44 U.S.C. 3501 entities. This standard is the most et seq.). Existing requirements were commonly used SBA employee standard approved by the Office of Management and would be the standard applicable to and Budget, approval number 3150-the types of manufacturing industries 0136. that would hold an NRC license. Under this standard, approximately 48 percent Regulatory Analysis of the licensees who indicated that they A regulatory analysis has not been were manufacturers would qualify as prepared for this final rule because the 60FR20879 small entities. final rule is administrative in that it Published 4/28/95 The NRC is adjusting its receipts- amends the criteria the NRC uses for Effective 5/30/95 based size standard to accommodate determining which of its licensees inflation and to conform to the SBA qualify as small entities for the purposes Interim Storage of Spent Fuel in an final rule. Tho NRC is rnising its of compliance with the Regulatory Independent Spent Fuel Storage receipts-based small business size Flexibility Act. The amended size Installation at a Reactor Site; Site-standard from $3.5 million to $5 standards conform to SBA's revised Specific License to a Qualified million. The NRC also is eliminating the standards and result in an increase in Applicant separate $1 million size standard for the number of NRC licensees that private practice physicians and qualify as small entities. See Part 72 Statements of Consideration applying the revised *receipts-based size 2-SC-123

PART 2

• STATEMENTS OF CONSIDERATION 60 FR 22461 changes to current addresses, telephone recordkeeping requirements, Special Published 5/8/95 numbers, and organizational titles nuclear material, Source material, Waste Effective 6/7/95 within the NRC. These changes are the treatment and disposal.

result of the consolidation of most NRC 10 CFR Part 30 Nuclear Power Plant License Renewal; headquarters employees to Rockville, Revisions Maryland. Byproduct material, Criminal Because this is an amendment dealing penalties, Government contracts, See Part 54 Statements of Consideration with agency organization, practice, and Intergovernmental relations, Isotopes, procedure, the notice and comment Nuclear materials, Radiation protection, provisions of the Administrative Reporting and reci:>rdkeeping Procedure Act do not apply pursuant to requirements. 5 U.S.C. 553(b)(A). The amendment is 10 CFR Part 32 effective upon publication in the Federal Register. Good cause exists to Byproduct material, Criminal dispense with the usual 30-day delay *in penalties, Labeling, Nuclear Materials, the effective date because the Radiation protection, Reporting and amendment is of a minor and recordkeeping requirements. administrative nature dealing with 10 CFR Part 40 changes to current addresses, telephone numbers, and organizational names. Criminal penalties, Government contracts, Hazardous materials Environmental Impact: Categorical transportation, Nuclear materials, Exclusion Reporting and recordkeeping The NRC has determined that this requirements, Source material, final rule is the type of action described Uranium. in categorical exclusion 10 CFR 51.22(c)(2). Therefore, neither an 10 CFR Part 50 environmental impact statement nor an Antitrust, Classified information, 60 FR 24549 environmental assessment has been Criminal penalties, Fire protection, Published 5/9/95 prepared for this final rule. Intergovernmental relations, Nuclear Effective 5/9/95 power plants and reactors, Radiation Paperwork Reduction Act Statement protection*, Reactor siting criteria, This final rule does not contain a new Reporting and recordkeeping 10 CFR Parts 2, 19, 20, 30, 32, 40, 50, or amended information collection requirements. 51, 60, 61, 70, 71, 72, 73, 74, 76, and requirement subject to the Paperwork 150 Reduction Act of 1980 (44 U.S.C. 3501 10 CFR Part 51 RIN 3150-AF34 et seq.). Existing requirements were Administrative practice and approved by the OffiGe of Management procedure, Environmental impact Changes to NRC Addresses and and Budget, approval numbers 3150- statement, Nuclear materials, Nuclear Telephone Numbers 0001, -0002, -0008, -0009, -0011, power plants and reactors, Reporting

                                             -0014,-0017,-0020,-0021,-0032,             and recordkeeping requirements.

AGENCY: Nuclear Regulatory -0044, -0123, -0132, and -aiss. Commission. 10 CFR Part 60 ACTION: Final rule. List of Subjects Criminal penalties, High-level waste, 10CFRPart2 Nuclear power plants and reactors,

SUMMARY

The Nuclear Regulatory Nuclear materials, Reporting and Commission (NRC) is amending its Administrative practic;:e and procedure, Antitrust, Byproduct recordkeeping requirements, Waste regulations to indicate the current treatment and disposal.

addresses, telephone numbers, and materiel, Classified information, organizational titles within the NRC. Environmental protection, Nuclear 10 CFR Part 61 These changes reflect the agency's materials, Nuclear power plants and reactors, Penalties, Sex discrimination, Criminal penalties, Low-level waste, consolidation of headquarters Nuclear materials, Reporting and employees to Rockville, Maryland. Source material, Special nuclear material, Waste treatment and disposal. recordkeeping requirements, Waste EFFECTIVE DATE: May 9, 1995. treatment and disposal.

• FOR FURTHER INFORMATION CONTACT: 10 CFR Part 19 Michael T. Lesar, Chief, Rules Review 1 O CFR Part 70 Criminal penalties, Environmental Section, Rules Review and Directives
• protection, Nuclear materials, Nuclear Criminal penalties, Hazardous Branch, Division of Freedom of power plants and reactors, Occupational materials transportation, Materiel Information and Publications Services, safety and health, Radiation protection, control and accounting, Nuclear Office of Administration, U.S. Nuclear Reporting and recordkeeping materials, Packaging and containers, Regulatory Commission, Washington, requirements, Sex discrimination. Radiation protection, Reporting and DC 20555, Telephone (301) 415-7163. recordkeeping requirements, Scientific 10 CFR Part 20 equipment, Security measures, Special SUPPLEMENTARY INFORMATION:

Byproduct material, Criminal nuclear material. Background penalties, Licensed material, Nuclear 10 CFR Part 71 The Nuclear Regulatory Commission materials, Nuclear power plants and is revising the regulations in 10 CFR reactors, Occupational safety and Criminal penalties, Hazardous Parts2,19,20,30,32,40,50,51;6o,61, health, Packaging and containers, materials transportation, Nuclear 70, 71, 72, 73, 74, 76, and 150 to provide Radiation protection, Reporting and materials, Packaging and containers, 2-SC-124

PART 2

• STATEMENTS OF CONSIDERATION Reporting and recordkeeping

SUMMARY

The Nuclear Regulatory Considerations that accompanied the requirements. Commission (NRC) is removing its publication of the 1982 Enforcement General Statement of Policy and Policy. The Commission stated then:

10 CFR Part 72 Procedure for Enforcement Actions An underlying basis of this policy that is Manpower training programs, Nuclear (Enforcement Policy) from the Code of reflected throughout it is that the materials, Occupational safety and Federal Regulations because the determination of the appropriate sanction health, Reporting and recordkeeping Enforcement Policy is not a regulation. requires the exercise of discretion such that requirements, Security measures, Spent each enforcement action Is tailored to the DATES: This action is effective on June particular factual situation. In view of the fuel. 30, 1995. discretion provided, the enforcement policy 10 CFR Part 73 Submit comments on or before August is being adopted as a statement of ge11eral 14, 1995. Comments received after this policy rather than as a regulation, Criminal penalties, Hazardous date will be considered if it is practical notwithstanding that the statement has bean materials transportation, Export, Import, to do so but the Commission is able to promulgated with notice and comment Nuclear materials, Nuclear power plants assure consideration only for comments procedures. A general statement of policy and reactors, Reporting and will permit the Commission maximum received on or before this date. flexibility in revising the policy statement recordkeeping requirements, Security measures. ADDRESSES: Send written comments to: end it is expected that the statement, The Secretary of the Commission, U.S. especially the supplement, will be revised as 10 CFR Part 74 Nuclear Regulatory Commission, necessary to reflect changes in policy and Accounting, Criminal penalties, Washington, DC 20555. ATIN: direction of the Commission (47 FR 9989; Hazardous materials transportation, Doclceting and Service Branch. Hand March 9, 1992).

• Material control and accounting, deliver comments to: 11555 Rockville For the same reasons, the Commission Nuclear materials, Paclcaging and Pike, Rockville, Maryland, between 7:45 continues to hold the view that the
• containers, Radiation protection, am and 4:15 pin, Federal workdays. Enforcement Policy is a policy Reporting and recordkeeping Copies of comments received may be statement. However, at least one court, requirements, Scientific equipment, examined at the NRC Public Document in considering whether an enforcement Special nuclear material. Room, 2120 L Street, NW, (Lower policy was a policy statement or a Level), Washington, DC. regulation, noted that if the policy were 10 CFR Part 76 published in the CFR, it would be
• FOR FURTHER INFORMATION CONTACT:

Certification, Criminal penalties, James Lieberman, Director, Office of properly treated as a regulation because Radiation protection, Reporting and Enforcement, U.S. Nuclear Regulatory the CFR is reserved for documents . recordkeeping requirements, Security Commission, Washington, DC 20555 "having general applicability and legal measures, Special nuclear material, (301) 415-2741. effect." (Brock v. Cathedral Bluffs Shale Uranium enrichment by gaseous SUPPLEMENTARY INFORMATION: 0n May Oil Co., 796 F.2d 533, 539 (D.C. Cir. diffusion. 13, 1994, the NRC's Executive Director 1986) citing 44 U.S.C. 1510 (1982)). 10 CFR Part 150 for Operations established a review Therefore, because the Enforcement team to assess the NRC enforcement Policy is not a regulation, the Criminal penalties, Hazardous program. The review team report, Commission is removing it from the materials transportation, NUREG-1525, 1 "Assessment of the Code of Federal Regulations. Revisions Intergovernmental relations, Nuclear NRC Enforcement Program," was of the Enforcement Policy will continue materials, Reporting and recordkeeping requirements, Security measures, published in April 1995. The team to be published in the Federal Register. Source material, Special nuclear report, in Recommendation II. G-3, To ensure widespread dissemination, material. recommended that the Enforcement the Enforcement Policy will be provided For the reasons set out in the Policy be removed from the Code of to licensees, made available on an preamble and under the authority of the Federal Regulations (CFR) because the electronic bulletin board, and published Atomic Energy Act of 1954, as amended; Enforcement Policy is not a regulation. as NUREG-1600, "General Statement of the Energy Reorganization Act of 1974, The NRC Enforcement Policy has Policy and Procedure for NRC as amended; and 5 U.S.C. 552 and 553; been codified at 10 CFR Part 2, Enforcement Actions." the NRC is adopting the following Appendix C to provide widespread amendments to 10 CFR Parts 2, 19, 20, dissemination of the Commission's Paperwork Reduction Act Statement 30,32,40,50,51,60,61,70,71, 72,73, Enforcement Policy. However, after the 74, 76, and 150. Commission first published the This policy statement does not Enforcement Policy on October 7, 1980 contain a new or amended information

                                           * (45 FR 66754), the Commission has                   collection requirement subject to the maintained that the NRG Enforcement                 Paperwork Reduction Act of 1980 (44 Policy is a policy statement and not a              U.S.C. 3501 et seq.). Existing 60 FR34380                                  regulation. The Commission's reason for . requirements were approved by the Published 6/30/95                           having a policy statement rather than a

• Office of Management and Budget, Effective 6/30/95 rule was_explained in the Statement of approval number 3150-0136. The Comment period expires B/14/95 approved information collection requirements contained in this policy 10CFRPart2 statement appear in Section VII.C.

1 Coples of NURECr1525 may be purchuad from Policy and Procedure for Enforcement the Superintendent of Documents, U.S. Government Printing Office. P.O. Box 37082, Washlnston, DC List of Subjects in 10 CFR. Part Z Actions; Removal 20013-7082. Copios ere also available &om the

           - -* -*---- .. - * - - * - - -    National Technical Information Service, 5285 Port      Administrative practice and AGENCY: Nuclear Regulatory                  Royal Road, Springfield, Virginia 22161, A*copy 11 also available for inspection and copying for a fee procedure, Antitrust, Byproduct Commission.                                                                                     material, Classified information, in the NRC Public Document Room, 2120 L Street, ACTION: Policy statement.                   NW. [Lower Level), Washington, DC Z055!MI001,       Environmental protection, Nuclear 2-SC-125

PART 2

• STATEMENTS OF CONSIDERATION materials, Nuclear power plants and 61 FR 39278 Rockville Pike, Rockville, MD, between reactors, Penalties, Sex discrimination, Published 7/29/96 7:30 am and 4:15 pm Federal workdays.

Source material, Special nuclear Effective 8/28/96 For information on_ submitting material, Waste treatment and disposal. comments electronically, see the. Decommissioning of Nuclear Power discussion under Electronic Access in Reactors the Supplementary Information Section: See Part 50 Statements of Consideration Copies of comments rece_ived may be examined or copies for a fee, at the NRC . Public Document Room, 2120 L Street 61 FR 13655 NW. (Lower Level), Washington, DC. Published 3/28/96

                                                                                                .FOR FURTHER INFORMATION CONTACT: M.L.

Au, Office of Nuclear Regulatory 10 CFR Part 2 Research, U.S. Nuclear Regulatory Policy and Procedure for Enforcement ;i:>,61 FR 43406 Commission, Washington, DC 20555-Published 8/22/96 0001, telephone (301) 415-6181. E-Mail: Actions; Removal; Correction . Effective 10/21/96 INTERNET:MLA@NR<;::.GOV. AGENCY: Nuclear Regulatory Comment period expires 9/23/96 Commission. SUPPLEMENTARY INFORMATION: ACTION: Policy statement: Correction. 10 CFR Parts 2 and 51 Bai:kgrouiid

SUMMARY

This document corrects a The NRG has removed Appendix C, notice appearing in the Federal Register RIN 3150-AF43 "Generll1 Statement of Policy and on June 30, 1995 (60 FR 34380), that Procedures for NRG Enforcement announced the-removal of the Nuclear Deletion of Outdated References and *Actions," from 10 CFR Part 2 (60 FR Regulatory Commission's (NRC's) Minor Change 34380; June 30, 1995) inasmuch as the Enforcement Policy from the Code of Enforcement Policy is a Policy AGENCY: Nuclear Regulatory Federal Regulations. This action is Statement, not a regulation. The Commission.

necessary .to correct an inadvertent . enforcement policy,*"General Statement indication in the Paperwork Reduction ACTION: Direct final rule. of Policy and Procedures for NRC

• Act Statement section that the policy Enforcement Actions-Enforcement statement did not include any information collection requirements. *

SUMMARY

The Nuclear Regulatory Commission (NRC) is amending its as Policy,"*was published a Policy Statement on June 30, 1995 (60 FR .

Because this notice and a second notice regulations to delete all refe~nces to 34381). It was also published as announcing the revision of the NRC's Appendix C, of 10 CFR Part 2. NUREG-1600 in July 1995. There are Enforcement Poli~ (60 FR 34381; J11ne Appendix C "General Statement of two sections (10 CFR 2.8(b) and

• 30, 1995) were susequently issued in Policy and Procedures for *Enforcement
• 51.lO(d)) in the Commissio~'s their entirety as NUREG-1600, NUREG- Actions," was removed from the Code of regulations that still reference Appendix 1600 also includes this inadvertent Federal Regulatjons because it is a C. to Part 2. This rulemaking deletes indication. An errata for NUREG-1600 Policy Statement, not a regulation, and 'both outdated references. '*

is being issued to address this issue. the enforcement policy was published This rulemaking-also amends§ 2.201, as a Policy Statement on June ~o. 1995. ."Notice of Violation," to provide that FOR FURTHER INFORMATION CONTACT: This direct fin,al rule also *provides that . the NRC may use discretion when. James Lieberman, Director, Office of the NRC may use discretion when

• d!Jtermining whether to require a Enforcement, U.S. Nuclear Regulatory determining whether to require a Commission, Washington, DC 20555- written explanation or statement in written explanation or statement in reply to a notice of violation. When the 0001, telephone (301) 415-2741. reply to a notice of violation. When the NRC believes that the licensee or other On page 34380, in the third full NRC believes that the licensee*or other person who received the notice of paragraph in the third column, the person who receives the notice of violation has already adequately correct Paperwork Reduction Act violation has already ade_quately addressed all the issues contained in Statement for the NRC's Enforcement addressed all the issues contained in. that notice, further .written ~sponses Policy should read: "This policy . that notice, at the discretion of the NRC; may not be req~d.
• statement does not contain a new or further written .responses Jllay not"be amended information collection required. *
• Discussion requirement subject to the Paperwork L Deletion of.Outdated lteference to*

DATES: This final rule is effective on 0 Reduction Act of 1980 (44 U .S.C. 3501 Appendix C to 10 CFR Part z_

• et seq.). Existing requirements were October 21, 1996, unless sigliificant ,

. approved by the Office of Management adverse comments are received by the .Section,2.8.

• ln/or:,nqtion Collection.

and Budget, approval number 3150- NRC. Comments should be submitted by Requirements: 0MB .Approval " . 0136. The approved information . September 23 ,- 1996. If the effective dat11 is delayed, timely notice ~11 be . .

• Section 2."8(a) currently states that the*

collection requirements contained in , Office' of Management and Budget this policy statement appear in Section published in the Federal Register. (0MB) has approved the information W.C." ADDRESSES: Mail written comments to: collection requirements contained in Dated at Rockville, Maryland, this 22nd Secretary, U.S. Nuclear Regulatory * *part 2; Section 2;8(b) states that the day of March 1996. Commission, Washington, DC, 20555- approved information coll.action * *

• For the Nuclear Regulatory Commission. 0001. ATTN: Docketing and Service* requirements appear in Append,ix C to John C. Hoyle, Branch. 10 CFR Part 2. Because Appendix Chas Secretary of the Commission. Hand deliver comments to: 11555 been removed from Part 2, there* are -no 2-SC-126

PART 2

• STATEMENTS OF CONSIDERATION longer any information collection bulletin board may be accessed using a Although FedWorld can be accessed requirements in this part. Thus, § 2.8 is
• personal computer, a modem, and one through tne World Wide Web, like FTP, .

amended to state that there are no of the commonly available that mode only provides access for

• information collection requirements communications software p~ckages, or downloading files and does not display contained in this part. It should be directly via Internet. the NRC Rules Menu. * *
• noted that any burden for the If using a personal computer and . For-more information on NRC bulletin information collections related to modem, the NRC rulemaking subsystem boards call Mr. Arthur Davis, Systems enforcement actions is currently
• on FedWorld can be accessed directly Inte~tion and Development Branch, associated with the policy state~ent by dialing the toll free number 1-800- .NRC, Washington; DC 20555, telephone ijune 30, 1995; 60 FR 34380),rather 303-9672. Communication software (301).415-5780; e-mail AXJ)3@nrc.gov.

than with Part 2. . parameters should*be set as follows: Procedural Background . parity to none, de.ta bits to 8, and stop Section 51.10 Purpose and Scope of bits to 1 (N,8,1). Usi.Ilg ANSI or vr-100 . Because NRC considers this action Subpart; Application of Regulations of terminal emulation, the NRC NUREGs noncontroversial and routine, we* are Council on Environmental Q~ality;* B;lld RegGuides for Comment subsystem approving it without seeking public Section 51.lO(d) currently states;. can then be ac~essed by selecting the . comments on proposed amendments..

 "These actions include issuance of.            "Rules Menu" option from the "NRC

• This action will become effective on
• notices, orders, and denials ofrequests Main Menu." For further information October 21, 1996. However, if the NRC for action pursuant to Subpart B of Part about options available for- NRC at
• receives Significant adverse comments ..'. C 2 of this chapter, matters covered by FedWorld, consult the "Help/
• by September 23,-1996, then the NRi::;:* -

Part 15 and Part 160 of this chapter, and

• 1nformation Center" from the "NRC . ~11 publish a document that.withdraws.

any other matters covered by Appendix --*Main Menu." Users will find the . this actipn (lrid will address the . C to Part 2 of this chapter." Because ."FedWorld Online User's Guides" . comments,receive*d,iJi response to the. Appendix C to"10 CFR Part 2 has been particularly helpful. Many NRC . * ' re9.uested revisions* which have been deleted, this spntence is incorrect. Thus, subsystems.and data:bases also have.a proposed for approval and are being

 § 51.tO(d) is amended by deleting the          "Help/Infonnati(!~* Center option *that          concurrently published-in-the proposed reference to Appendix C to 10 CFR Part         is tailored to the particular subsystem*.

• rules section of this Federal Register. *

2. Enforcement-related actions *The NRC subsystem on FedWorld can Comments will be addressed in" the final **

identified in the former-Appendix C to also be accessed by a direct. dial phone rule OD this.proposal.The NRG-will not

*10 CFR Part 2 will be added as examples        number for the.main FedWorld BBS,

• ini~ate a second comment period *on *. .
• to the list of actions in§ 51.lO(d). 70*3-321-3339, ~r by using Telnet via this action: . ** * .

Internet: fedworld.gov. If using ?03-. Env.iromnental Impact: Categoricill *

• II. Grant of Discretion to Commission 321-,3339 to contact FedWorld, the NRC To Require a Written Explanation in* Exclusion .

subsystem-will be ~ccessed from the* *

• Reply to a Notice of Violation The NRC has determined that.this .

                                             ..main FedWorld menu by selecting the : .

Section 2.201 Notice o/Vic;lation -- "Regulatory, GovE!rnment . direct final"rille is the t ~ of action***

• Administration and State Systems," described as a cat!lgoriml exclusion ln
• Section 2.201(a) states that, in §§-51.22(c)(1) and 51.22(c)(2). Therefore, .

response to a notice of violation, a . then selecting "Regulatory Information Mall." At that p(!int, a=menu will be *

• neither an envirom:nental impact . * .

licensee or other person subject to the

• statement.nor an.environmental*

jurisdiction of the Commission to whom displayed that has an option "U.S. .

• Nuclear Regulatory Commission" that Bl!sessment has been" prepanjd for. this a notice of violation has been sent" will will take you to the NRC Online main* . direct final rule. . , . .: * * . *. : * .

be required to submit a written *menu;The NRC Online area also:can be statement in reply, includi!lg corrective Paperwork Reduction *.Act$iatement for accessed directly by typing "/go nrc"* at Direct Final Rule*

• steps that have been taken, and the date a FedWorld command line. If yo~ access when full compliance will be achieved. NRC from FedWorld's main menu, you .. This direct final rule does not contain However, when a licensee*or other may retlll'Jl t~ FedWorld by selecting the* .. a new or amended information ..

person bas already adequately "Return to Fed.World"* option from* the . collection requirement subject to the addressed the issues.contained in the .NRC Online Main Menu. However; if ...

• Paperwork Reduction Act of 1995 (44 notice of violation in writing, the . you access.NRC-at FedWorld.by u$g* U.S.C. 3501 et seq.). Existing * * .
• licensee or other person has already, in NRG's toll-free number, you.~11 have infonnation collections were approved*

effect, responded to the violation and a fu,llaccess to all NRC systems but you by the Office of Management l!Dd**

• further written statement may be will not have access to the main * ., Budget, -approval n,umberi. 3150:...0136.

unnecessary. Therefore, §2.201(a) is *FedWorld system; * .. '. .* and 3150-0021.. * * * *. amended to replace the existing phrase If you contact FedWorld using Telnet,

 !'will require" with "may require." This                                                          Public Protection Notification- **.

you will see the*NRC area and menus,

• change grants the NRC discretion when including the Rules menu. Although
• The NRC may *not.conduct oi' spo;nsor, determining whether to require the you will be able to download and a person is not required to respond
• submittal of a written explanation or documents Bild leave messages; you will to, a collection :of information unless "it statement when the NRC believes that a . not be *able to write conuµents or upload displays a currently valid 0MB control licensee or other person has already files (comments);*Ifyou contact m,unber. . .. ,.. * . * . ..
• adequately addressed all the issues F.edWorld using FTP, all-files can be Regulatory Aiialyliis
• contained in that notice of violation. accessed and downloaded but uploads T)lis.direct . final.rule deletes o;,;,tciated Electronic Access are not allowed: all you will see {s a list references to' an appendix which Comments may be submitted . of files without descriptions (nomiiil . previously has been deleted from the .:
• electronically, in either ASCII text or Gopher look) ..An index file listing 'all Commissio11 regulations and provides files within a subdirectory, with
• that the NRC may ,use discretion
• WordPerfect format (version 5.1 or descriptions, is included. There is a 15- .

later), by calling the NRC Electronic "n!gardihg the submittal of a written

• minute limit for FTP access. .*
• Bulletin Board (BBS) on FedWorld. The . response from a licensee if the NRC 2-SC-127

PART 2

• STATEMENTS OF CONSIDERATION believes that the licensee or other required by the Federal Civil Penalties person bas already adequately* * .
• Inflation Adjustment Act of 1990, as addressed all the issues contained in a amended by the Debt Collection notice ofviolation. Deleting.the
• Improvement Act of 1996 (the Act) (Pub.

61 FR 53554 L. 1~4-134, 110 Stet. 1321-358, 373, outdated.references will have no impact Published 10/11/96 on licensees, the NRC, or the public.

• Effective 11/12/96 codified at 28 U.S.C. 2461 note).

The NRC's discretion on requiring n. Background _reports respqnding to a notice of 10 CFR Parts 2 and 13 The Federal"Civil Penalties Inflation violation will reduce the burdens of Adjustment Act of1990 required that preparing unnecessary reports-by . ;IB>RIN 3150-AF57 the President submit, within 6 months ijcensees and c:if reviewing these reports and every .fifth year.thereafter, a report by the NRC without compromising the Adjustment of Civil Monetary Penalties public health and safety. However, it is* _!or Inflation to certain Congressional committees on impossible to qua:,;itify the amount of

• AGENCY: Nuclear Regulatory the specific amounts of civil monetary penalties that were authorized under reduction in burden because the number Commission.
• Federal law, the amount of the penalties

 *of discretions to be authorized cannot be ACTION: Final rule.                                  if adjusted for inflation, and a         * .

estimated. Therefore, the burden under ---------------

' the direct final rule would. be*atm.osr--. 

SUMMARY

The Nuclear Regulatory description of modifications to Federal equal, but probably less than, the * . Commission (NRC) is amending its law that would be necessary to increase burden wider the' existing regulations. regulations to adjust the maximum Civil the penalties to meet the inflation This-constitutes the regulatory:analysis

• Monetary Penalties (CMPs) *under adjustment. Aside from modification of

'for the direct final rule.           .           statutes within the jurisdiction of the        the scope and timing of Presidential

• NRC. These changes are mandated by reports to CQngress, the Debt Collection

 .S~allB1isiness Regulatory.Enforcement

• Congress in the Federal Civil Penalties Improvement Act of 1996 amended that Act * * * *
• Inflation Adjustment Act of1990, as statute to require that the head of each In accordance ~ith the Small amended by the Debt Collection agency adjust by regulation the CMPs Business Regulatory Enforcement Improvement Act of 1996. within the jurisdiction of the agency for Fairness Act of 1996,the NRC has The Commission's Rules of Practice inflation, no later than 180 days after determined that this action. is not a . are amended by adding a provision that the date of enactment of the Act and at major rule and has -verified this establishes the maximum CMP for a least once every four years thereafter.

determination with the Office of violation of the AEA or any regulations

• Thus, the first inflation adjustment is required by October 23, 1996, which is
• Inform~tion and Regulatory Affairs of
• or order issued thereunder in the 180 days after enactment of the Act on 0MB. .. _,. . * . * . . amount of $110,000. The provisions . April 26, *1996. .

concerning program fraud civil Backlit Analysis*. penalties are amended by adjusting the The inflation adjustment is to be . determined by increasing the maximum

   ** The NRC has tletermineil that the           maximum civil penalties under the              CMPs or tho range of minimum and backlit rule, 10 CFR 50.109, does not           Program Fraµd Civil Remedies 1',ct from        maximum civil monetary penalties, as apply-to this-rule, because these               $5,000 to $5,500 for each false claim or       applicable, for each CMP by the amendmentii*do not involve any                  statement as detennined in accordance          percentage t.hat the-Consumer Price provisions that would impose backfits           with that statute. The final rule also         Index (CPI) for the month of June of the as defined*in 10 CFR 50.109(a)(1).              corrects a typographical error.                calendar year preceding the adjustment Therefore, a baclcfit analysis is.not           DATES: The rule shall be effective on          exceeds the CPI for the month of June required for this direct.final rule.

• November 12, 1996. of the last calendar year in which the LIS_*l of Subjects FOR FURTHER INFORMATION CONTACT: amount of such penalty was last set or Roger K. Davis, Office of the General adjusted pursuant to law. In the case of 1.0 CFR Pciri 2 Counsel, U.S. Nuclear Regulatory penalties greater than $1,000 but less

 *; : Administrative practice and.. .:            Commission, Washington, DC 20555-              than or equal to $10,000, inflation procedure, Antitrust; Byproduct*                0001, telephone: 301-415-1615; e-mail          adjustment increases are to be rounded material, Classified information,               RKD@nrc.gov., or Geoffrey D. Cant,             to the nearest multiple of $1,000.

Environmental protection, Nuclear Office of Enforcement, U.S. Nuclear Increases are to be rounded to the _materials, Nuclear power plants and. Regulatory Commission, Washington,

• nearest multiple of $10,000 in the case reactors,.Penalties,. Sex discrimination,: DC 20555-0001, telephone: 301-415- of penalties greater than $10,000 but Source:material, Special nuclear *. . . 3283; e-mail GDC@nrc.gov. less than or equal to $100,000. However mafl,rial;Waste _treatment arid disposal. SUPPLEMENTARY INFORMATION:
• the first adjustment of a CMP pursuant '

I. Introduction. *to the Debt Collection Improvement Act 10 CFB Part 51 II. Background. of 1996 may not exceed 10 percent of Administrative practice and . m. Discussion. such penalty. procedure, Environmental Impact IV. Procedural Background. statement, Nuclear power plants and *. V. Environmental Impact: Categorical m. Discussion reactors, Reporting and recordkeeping Exclusion. Section 234 of the Atomic Energy Act VI. Paperwork Reduction Act Statement. (AEA), as amended in 1980, has limited

 -requirements.                                   VII. Regulatory Analysis.

For-reasons set out in the preamble VIII. Small Business Regulatory Enforcement civil penalties for violations of the and under the authority of the Atomic . Fairness Act. Ato~c Energy Act to $100,000 per day

*Energy Act of 1954, ils amended, the**           IX. Beckfit Analysis.                         per violation. As adjusted for inflation,
  ~ergy Reorganization Act of 1974 as                                                           the penalty ~ount would be $180,000 amended, and 5 U.S.C. 5_52 and 553, -the        I. Introduction                                (P.fter rounding the amount of the NRC is adopting the following                       The Commission hes.amended its            inflation adjustment increase to the amendments to 10 CFR plll'.ts 2 and 51.         regulations in Part 2 and 13 in order to      nearest multiple of $10,000). Because adjust maximum civil monetary                 the Debt Collection Improvement Act of

_penalties_w}.~ its jurisdiction as 1996 limits the amount of the first 2-SC-128

PART 2

• STATEMENTS OF CONSIDERATION required increas~ to 10% of the amendments contained in the rule, and NRC's implemen~g regulations (10 maximum penalty amount, however, the provided no discretion to the agency CFR Part 13).

NRC must limit its inflation adjustment regarding the substance of the increase to $10,000, i.e., 10 percent of amendments. All that is required of the VIII. Small Business Regulatory

$100,000. Thus, the NRC has by                NRC for determination of the amount of        Enforcement Faimess Act regulation, by addition of a subsection       the inflation adjustment are ministerial         In accordance with the Small (j) to 10 CFR 2.205, established a new        computations. *

• Business Regulatory Enforcement maximum CMP under the Atomic Fairness Act of 1996, the NRC has Energy Act in the amount of $110,000. V.*Environmental Impact: Categorical. . determined that this.action is not a Exclusion .
• This new maximum CMP applies only m_ajor rul~ and has yerified this .

to violations which occur after the The NRC has determined that this de\ennination with the Office of effectiye date of this regulation. final rule is the type of action described Information and Reguiatory Affairs of Monetary penalties under the Program as a categorical exclusion in 10 CFR 0MB. * *

• Fraud Civil Remedies Act, 31 U.S.C. 51.22(c)(1) and 51.22(c)(2). Therefore, 3801, 3802, and the NRC's IX. Backfit Analysis neither an envi!-"onmental impact implementing regulations, 10 CFR statement nor an environmental The NRC has determined that these 13.3(a)(1) and (b)(l), had been limited to assessment has been prepared for this.* amendments. do not involve any

$5,000 per violation. As adjusted fully       regulation. This llction merely adjusts . provisions which-would impose back.fits for inflation, the penalty amount would       monetary civil penalties for inflation as as defined in 10 CFR 50.109(a)(1);

be $7,000. Because of the 10 percent required by statute and involves no therefore, a backfit analysis need not be. limit on the increase in the penalty for policy determinatioi;is. prepared.. the first adjustment under the Debt List of Subjects Collection Improvement Act of 1996, VI. Paperwork R.eduction Act the amount of the first required increase Statement 10CFRPart2 is limited to $500. Thus, NRC has This final rule does not contain a new Administrative practice and amended 10 CFR 13.3(a)(1) and (b)(l) by or amended information collection procedure, Antitrust, Byproduct increasing the maximum CMP for each requirement subject to the Paperwork material, Classified information, false statement o; claim under the Reduction Act of 1995 (44 U;S.C. 3501 Environmental protection, Nuclear Program Fraud Civil Remedies Act from et seq.). materials, Nuclear power plants and $5,000 to $5,500. This new maximum reactors, Penalties, Sex discrimination, CMP applies only to violations which vn. R.egulatory Analysis -Source material, Special nuclear occur after the effective date of this regulation. This final rule adjusts for-inflation the material, Waste treatment and disposal. The Commission has no discretion to maximum civil penalties under the 10 CFR Part 13. set alternative levels of adjusted civil Atomic Energy Act of 1954, as amended, penalties since the amount of the and under the Program Fraud Civil Claims, Fraud, Orgllllization and inflatio,i adjustment must be calculated Remedies Act of 1986. The adjustments function (government agencies), in accordance with the statutory and the fonnula for determining the Penalties.

• fonnula. Conforming changes to the amount of the adjustment are mandated . For the reasons set out above and .

NRC Enforcement Policy (NUREG- by Congress in the Federal Civil under the authority of the Atomic 1600), published in the Federal R.egister Penalties Inflation Adjustment Act of Energy Act of 1954, as amended, the on June 30, 1995 (60 FR 34381), will be 1990, as amended by the Debt Energy Reorganization Act of 1974, as made and published in a notice Collection Improvement Act of 1996 amended, the Federal Civil Penalties accompanying this rule. (Pub. L. 104--134, 110 Stat. 132*1.:..353, Adjustment Act of 1990, as amended,

 . The final ru1e also corrects a             373, codified at 28 U.S.C. 2461 note).       and 5 U.S.C. 552 and 553, the NRC is typographical error in 10 CFR                 Congress passed that legislation on the       adopting the following amendments to 13.3(a)(l)(iv). The word "as" is              basis ofits findings that the power to        10 CFR Parts 2 and 13.

substituted for the word "was" and the impose monetary civil penalties is clause, as revised, now conforms to the important to deterring violations of exact words of 31 U.S.C. 3802(a)(1)(D), Federal law and furthering the policy as the NRC originally intended. goals of Federal laws and regulations. Congress has also found that inflation IV.ProceduralBackground has diminished tlie impact of these ~61 FR 56623 This final rule has been issued penalties and their effect. Thus, Published 11/4/96 without prior public notice or principal purposes of this legislation are opportunity for public comment. The to provide for adjustment of civil Administrative Procedure Act (5 U.S.C. monetary penalties for inflation, 10 CFR Parts 2 and 13 553(b)(B)) does not require that process maintain their deterrent effect and "when the agency for good cause finds promote compliance with the law. Thus, RIN 3150-AF57 (and incorporates the finding and a brief these are anticipated impacts of statement of reasons therefor in the implementation of the mandatory Adjustment of Civil Monetary Penalties rules issued) that notice and public provisions of the legislation. Direct for Inflation; Correction procedure thereon are impracticable, monetary*impacts will fall only upon - .. * - ----*- * - - - *- - - - - AGENCY: Nuclear Regulatory unnecessary, or contrary to the public licensees or other persons subjected to Commission. interest." In this instance, the NRC NRC enforcement action or those finds, for good cause, that solicitation of licensees or persons subjected to ACTION: Final rule: Correction. public comment on this final rule is liability pursuant to the provisions o( unnecessary and impractical. Congress . the Program Fraud Civil Remedies Act

SUMMARY

This doctiment corrects a has required that the agency issue the of 1986 (31 U.S.C. 3801-3812) and the final rule appearing in the Federal 2-SC-129

PART 2

• STATEMENTS OF CONSIDERATION Register on October 11, 1996 (61 FR 53554), that adjusts the maximum Civil Monetary Penalties under statutes within the jurisdiction of the NRC. This action is necessary to correct an erroneous Regulation Identifier Number (RIN).

FOR FURTHER INFORMATION CONTACT: Michael T. Leser, Chief, Rules Review Section, Rules Review and Directives Branch, Division of Freedom of

• Information and Publications Services, Office of Administration, telephone (301) 415-7163.

SUPPLEMENTARY INFORMATION: On page 53554, in the first column, in the heading, the fourth line from the top, the RIN number is corrected to read, "RIN 3150-AF57". Dated at Rockville, Maryland, this 29th day of October 1996. For the Nuclear Regulatory Commission. Michael T. Lesar,

• Chief, Rules Review Section, Rules Review and Directives Branch, Division ofFreedom of InformaUon and Publications Services, Office of Administration.

2-SC-130

UNITED STATES NUCLEAR REGULATORY COMMISSION RULES and REGULATIONS TITLE 10, CHAPTER 1, CODE OF FEDERAL REGULATIONS-ENERGY NONDISCRIMIN~TION 11\1. FEDERALLY ASSISTED COMMIS~ION PROGRAMS

            ~J~TEMENTS OF CONSIDERATIQN 52 FR 25355 Published 7/7/87 Effective 7 /7/87 10 CFR Part 4 Nor.discrimination on Basis of Age in Federally Assisted Commission Programs AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

SUMMARY

The Nuclear Regulatory Commission (NRC) is amending its regulations to implement provisions of

                           . 4-SC-1

PART 4

• STATEMENTS OF CONSIDERATION the Age Discrimination Act of 1975, as
• discrimination on the basis of age in On November 23, 1981, a copy of the amended. The Act, which applies to programs or activities which receive draft final rule was transmitted to the persons of all ages, prohibits Federal financial assistance. Office of the General Counsel, Civil discrimination on the basis of age in Sections 4.2 and 4,3(d) of the General Rights Division, HHS, for review and programs or activities receiving Federal Provisions have been amended to more approval. T'nis action was nec:essarv to financial assistance. It also contains closely conform to language used in the comply with the requirement that
• certain exceptions that permit, under HHS government-wide regulations agency specific regulations were to be limited circumstances, use of age defining Federal financial assistance. approved by the Secretary, HHS before distinctions or factors other than age The revised language describes the they .were published as final regulations.

that may have a disproportionate effect coverage of Part 4 more specifically. In a letter dated.July 14, 1984, the . on the basis of age. These amendments The Act, es implemented by these Director, Office of Civil Rights, HHS, are designed to guide the actions of regulations, generally covers ell approved the draft l'ol'RC final rule recipients of financial assistance from programs and activities which receive without. change. NRC. They incorporate the basic Federal financial assistance. However, the Act and these regulations do not NRC Assistance Programs standards for determining what is age discrimination, and they discuss the apply to any age distinction

• The NRC currently provides responsibilities of NRC recipients and "established under authority of any assistance in the form of training the investigations. conciliation, and law" which provides benefits or programs for Slate personnel. The enforcement procedures NRC will use to establishes criteria for participation on training is performed pursuant to section ensure compliance \\'1th the Act. the basis of age or in age-related tenns 274 of the Atomic Energy Act of 1954, as EFFECTIVE DATE: July 7, 1987.

(§ 4.302(b)). Thus, age distinctions which amended, which provides for State are "established under authority of any assumption of certain areas of NRC FOR FURTHER INFORMATION CONTACT: law" may continue in use. By the terms regulatory activity. This Agreement Mr. Edward E. Tucker, Manager, Civil of§ 4.302(b] "any law" refers to Federal States Program is designed to improve Rights Program. Office of Small and statutes, state statutes, or local statutes the State employees' technical and Disadvantaged Business Utilization/ adopted by elected, general purpose administrative skills as well as develop Civil Rights, U.S. Nuclear Regulatory legislative bodies. an understanding and ability to apply Commission, Washington, DC 20555, The Act also excludes from its regulatory concepts and procedures. telephone (301) 492-7697. coverage most emp!oyment practices, In addition to the Agreement States SUPPLEMENTARY INFORMATION: except for programs funded under the Program, the NRC has recently entered public service employment titles of the into assistance relationships (grants and Background Comprehensive Employment and certain types of cooperative agreements) Section 6102 of the Age Training Act (CETA). These regulations with a variety.of eligible recipients for

• Discrimination Act of 1975, as amended, do cover any program or activity that is projects related to nuclear safety provides in part that "no person in the both a program of Federal financial assessment. The use ofthese assistance*

United States shall, on the basis of age, assistance and provides employment instruments is designed to increase the be excluded from participation in, be such es the College Work Study flexibility available to NRC staff in denied the benefits of, or be subjected to Program (42 U.S.C. 2751, et seq.) and the stimulating research and information discrimination under, any program or Work Incentive Program (42 U.S.C. 630, exchange in technical areas.directly activity receiving Federal financial et seq,). The Age Discrimination in related to their regulatory assistance." The Act directs that all Employment Act (ADEAJ, which is responsibilities. Paragraph (e) of Federal agencies empowered to provide administered by the Equal Employment Appendix A is being revised to add a Federal financial assistance issue rules, Opportunity Commission (EEOC), reference to research support programs regulations. and directives consistent continues to be the Federal statute that and to delete the information regarding with standards and procedures prohibits employment discrimination for the. Uranium Mill Tailings Radiation established by the Secretary of Health, persons between the ages of.40 and 70. Control Act of 1978, section 207, Education and Welfare, now the Individuals in this age range who Pub. L. 95-604. 92 Stat. 3003, Secretary of Health and.Human Services experience employment discrimination, authorizing grants to eligible Agreement (HHS). The standards and procedures other than in CETA public service States to aid in the development of State established by the Secretary of HHS employment programs, must look to the regulatory programs, because the have been published as final general ADEA for relief. not the Age authority for that program is no longer in regulations in 1979 in 45 CFR Part 90 (44 Discrimination Act. effect. FR 33768]. The HHS model regulations On September 21, 1981 (46 FR 46582), the NRC published a notice of proposed Environmental Impact: Categorical were the subject of protracted litigation Exclusion that delayed the approval of NRC's final rulemaking concerning these regulations until October 1985. amendmenis. The proposed regulations The NRC has determined that this Differences in language between the were based on the model regulations final rule is the type or'action descnbed final rule and the HHS general developed by HHS. . in categorical exclusion 10 CFR regulations are for the sake of clarity The NRC received one comment on its 51.22(c](1]. Therefore. neither an end are not intended to constitute proposed regulations. The commenter environmental impact statement nor an substantive differences. The HHS stated that the complainants should not environmental assessment has been general regulations are also referred to be required to state when they first prepared for this final rule. as the HHS government-wide knew of the discrimination. Rather it regulations. should be an element of the affirmative Paperwork Reduction Act Statement These amendments would be added to defense offered by the person or organization charged with This final rule amends information 10 CFR Part 4 as Subpart C. The General collection requirements that are subject Pro\*isions. § § 4.1 through 4.4 and discrimination. The statute requires that agency regulations b'e consistent with to the Paperwork Reduction Act of 1980 Appendix A, which identifies the-NRC (44 U.S.C. 3501 et seq.). These programs of financial assistance to the HHS general rules. The HHS general rules do not address this issue and NRC requirements were approved by the which Part 4 applies, would be Office of Management and Budget applicable to Subpart C. Subpart C is has no authority to depart frol)'I the general rules, therefore the NRC approval number 3150-0053. devoted exclusively to prohibiting regulation was not changed. 4-SC-2

PART 4

• STATEMENTS OF CONSIDERATION Regulatory Analysis

SUMMARY

The Nuclear Regulatory that a record be kept until the Commission (NRC) is amending its Commission authorized its disposition, The Commission has prepared a regulations to establish a definite *and in others, that it be retained regulatory analysis on this final retention period for each record that an indefinitely. Some parts of NRC regulation. The analysis examine_s the NRC application or licensee for a regulations specified the condition of a costs and benefits of the alternatives . materials or facility license is required record acceptable to the NRC considered by the Commission. The to maintain. This action is necessary to throughout itil required retention period:

analysis is available for inspection in comply with the Office of Management others did not. the NRC Public Document Room. li17 H and Budget requirement that a specific . This rule amends regulations in 19 Street NW., Washington. DC. Single retention period be identified for each parts of Title 10 to require th9:t certain copies of the analysis may be obtained record. The final rule also establishes a records in these parts be retamed for from Mr. Edward E. Tucker, Manager, uniform standard acceptable to the NRC specific periods. The rule also provides Civil Rights Program, Office of Small for the condition of a record throughout for all parts to Title 10, Chapter I. the and Disadvantaged Business Utilization each specified retention period. Thia condition of a record acceptable to the and Civil Rights, U.S. Nuclear action-is expected to reduce the overall NRC throughout its retention. Regulatory Commission, Washington, recordkeeping burden for NRC This rule also establishes.four specific DC20555. applicants and licensees by use of retention periods to be used throughout Regulatory Flexibility Certification uniform and specific retention periods 10 CFR Chapter I. With the exception of for each recordkeeping requirement. one 6 month retention period at 10 CFR As required by the Regulatory 70.5B(h). uniform retention periods of 3 EFFECTIVE DATE: July 26, 1988. Flexibility Act of 1980, 5 U.S.C. 605(b), years, 5 years, 10 years, or the life of the the Commission certifies that this rule FOR FURTHER INFORMATION CONTACT: Brenda J. Shelton, Acting Chief. Records component, activity, area, or facility are does not have a significant economic being codified to siD,1plify the system for impact on a substantial num~e! of small and Reports Management Branch, Division of Information Support retaining NRC records. These particular entities. Pursuant lo the prov1s10ns of four periods, although not ideal for the Age Discrimination Act of 1975, as Services, Office of Administration and Resources Management. U.S. Nuclear everv record retention requirement. amended, the final rule conditions the seem to be the best choices for NRC granting of Federal financial assistance Regulatory Commission. Washil)gton. DC 20555, Telephone: 301-492-a132. record needs. Uniform periods were by the NRC upon the basis that the recommended to the NRC by the recipient shell not discriminate because SUPPLEMENTARY INFORMATION: Nuclear Information and Record of age in programs sponsored by the Management Association (NIRMA) NRC. Moreover, since there are no Background based on the nuclear industry's input to additional date collection or The Nuclear Regulatory Commission's NIRMA. Three of the uniform periods recordkeeping requirements necessary (NRC) regulations require that coincide with the retention periods for for compliance, the final rule: if. . applicants and licensees retain a variety -quality assurance (QA) records in Parts implemented, will not result m ~mposmg of records for various periods of time. 50 and 71; the fourth coincides with the an economic burden on any rec1p1enl, Licensees must also retain certain plans retention periods for records such as

• including small entities. and procedures for routine operation those covered by technical List of Subjects in 10 C:FR Part 4 and emergency situations and file specifications.

reports of certain occurrences and The NRC recognizes that technical Administrative practice and events. The NRC reviewed its

• specifications for each nuclear power procedure, Civil rights, Federal aid recordkeeping requirements to plant include record retention programs. Handicapped. Reporting and determine how long the required records requirements that may, in som.e cases, recordkeeping requirements. should be retained. Thie rule reflects the differ from those set out in this nile. The For the reasons set out in the results of that review and of the public requirements in this rule take preamble and under the authority of the comments received on the proposed precedence over and supersede any Atomic Energy Act of 1954, as amended. rule. The NRC did not include 10 CFR conflicting requirements presently in the the Energy Reorganization Act of 1974... Part 20 in its review. The record technical specifications. Therefore, the as amended, end 5 US.C. 553. the NRC 1s retention requirements contained in Part Office of Nuclear Reactor Regulation .

adopting the following amendments to 20 were examined and modified as part* (NRR) intends to issue a generic letter .10 CFR Pert 4. of the proposed revision to Part 20 that that would provide guidance to was published for public comment in the licensees for revising their technical 153 FR 6137 Federal Register on December 20, 1985. specifications to conform with this rule

Published 3/1/88 (50 FR 51992) and republished on and would include model technical Effective. 3/ 1/88 January 9, 1986 (51 FR 1092). specifications to follow for achieving

• Relocation of Office of Nuclear Codification of these amendments and this conformance.

Reactor Regulation amendments in certain published During the course of reviewing 10 CFR prDposed rules combined with this final 50.38, Technical Specifications," the See Part 19 Statements of* Com;ideration rule will establish .uniform retention staff found that this section does not periods for all NRC recordkeeping clearly reflect the difference ip. '53 FR 19240 requirements. NRC also intends to Published 5/27/88 recordkeeping end reporting Effective 7 /26/88 conform record retention requirements requirements for reactors licensed under in future rules to the four uniform different sections of the regulations. 10 CFR Parts, 4, 11, 25, 30, 31, 32, 34, periods contained in this rule. Specifically, commercial and industrial 35,'"1,50,60,&1,70,71,73,74,75,95, *Pre~ously, NRC regulations facilities are licensed under§ S0.21(b) or and 110 sometimes specified that a record be § 50.22 and have detailed notification retained for a specific period of time. and reporting requirements delineated Retention Periods for Records These periods varied widely from 1. or 2 in § 50.72 and § 50.73, respectively. AGENCY: Nuclear Regulatory years, to the 40-year life of a reacfor Therefore, specific cross references to Commission. license, or to the completion of § 50.72 and § 50.73 have been added to decommissioning for some licenses. In § 50.36 where appropriate. Facilities ACTION: Final rule. other instances, the regulation specified licensed under 1S0.21Ca1 for medical 4-SC3

PART 4

• STATEMENTS OF CONSIDERATION therapy usea and facilitiea licensed Management and Budget (0MB) review Specification amendment made to under§ 50.21(c} for research and of the information collection conform to this rule is not required and development activities do not have requirements in each rulemaking. In that _"pen and ink" changes are separate aections dealing with addition. two documents on paperwork acceptable. Two commenter& suggested notification and reporting. The reporting are being prepared for publication in the that fees should not be required for requirement& on the automatic safety NURE~series: One document will be these changer..

syatem and for these typea of reactor& .based on Regulatory Guicie 10.1. which Response. T'ne Commission agrees are contained within I 50.38. is a compilation of reporting that a Technical Specification Accordingly, language ia being added to requirements for persons subject to NRC amendment. to conform to the

 § 50.36(c)ll}(ii)lA) to make it conform      regulations. and the other document will    ad.minstrative requirements of this rule with i 50.72(b)(2)(iii) and                   summarize the record retention periods     is not required and that "pen and ink"
 § 50.73(a}(2){v).                            for the recordkeeping requirements          changes will suffice. However, should An effort has been made to use             contained in NRC regulations. These         licensees desire k> amend their

• consistent terminoiogy with regard to companion documents should be useful Technical Specifications to conform to paperwork throughout thia multi-part to an NRC applicant or a licensee. the administrative requirement of this rule. For example, the term "retain" On October 28, 1987, the NRC rule. the licensees would not be required conveys the idea of keeping secure or published the proposed rule in the to submit fees under 10 CFR Part 170.

intact and the term "maintain" Federal Register (52 FR 41442). The 2. Comment. One commenter continuing to preseve and update. in thia comment period ended on December 28. suggested that the general statement caae. a record. Consistent terminology 1987. appearing in the Supplementary and specific recordkeeping requirements Information which states that Summary of Public Comments requirements in this rule take and retention periods should asaist an NRC applicant or a licensee in Comments were received from sixteen precedence over and supersede any complying with th,.ese requirements. respondents comprised of eight power conflicting requirements in the The changes resulting from this rule reactor licensees, three industry groups. Technical Specifications should be should result in an overall reduction in two law firms, one university. one fuel addreBBed in. 10 CFR 50.36 and. as the recordkeeping burden imposed on fabrication plant operator, an*d one appropriate. referen~ed in other 1D CFR the l\TRC applicant or licensee. The private citizen. Copies of the comment Parts. letters are available for public Response. The Commission believes major reduction in burden results from that the information provided in the establishing 126 specific retention inspection and copying for a fee at the

                                             *NRC Public Document Room at 1717 H          "Supplementary Information" is periods, primarily three years or the life Street, NW.; Washington, DC. Fifteen of    adequate. 10 CFR S0.71(d)(2) currently of a license, for records that up to now                                                  addresses the precedence issue for 10 were retained indefinitely. This major

• the_ sixteen commenters generally agreed with the proposed amendments CFR Part 50 licensees and applicants.

reduction, plus four other reductions of Reference to § 50.71(d)(2) in other 10 retention periods by two years, offsets and one commenter disagreed. Individual who disagreed did not CFR Parts is not necessary. the increase in retention periods for 54 3. Comment. Three commenters records; 42 cases by one year, 10 cases. identify any specific records but stated that "reduction of many record recommended that t.ite maintenance of by two years. 1 case by two and one records in electronic media such as half yeal'f!, and 1 case by three years. retentions to three years would invite cheating. criminal activity, and the computerized records and optical disks Based on staffs understanding of be addressed. . current industry practices, the increases ignoring of rules set up to protect the public." The Commission does not agree Response. TheCommiesion does not in retention periods would either not object to the use of electronic media for impose any additional burden or could with this comment. The Commission has an extensive compliance monitoring and the storage of records as long as legible, be readily accommodated within current accurate, and complete records can be equipment configurations and. therefore, inspection program. While examination produced mhardcopy throughout the would represE!nt no appreciable increaee of licensee record is an important part of duration of the required retention in burden. A paragraph describing the the program, it is not the only means by period. Records such as letters, form and condition of a record

• which NRC determines whether drawings, upecificalions, etc.. must acceptable to the NRC for review is *licensees are operating safely. Moreover includ!,l all plll'tinent features such as being codified in ten parts. This for those requirements covered by the stamps. iDitiala.. and signatures.

requirement is comparable to similar three year minimum period, the Adequate IJIWl81llll'(fs against tampering provisions currently included fu other Commiasion believes that records with andloBS*ofrecords must also be parts oNhe NRC regulations. . covering the previous three year period maintained. The rule has been changed Specifying clearly in NRC regulations will be suffi9ient to assist the agency in to address the use of electronic media. what records to retain,-how long to . judging compliance or noncompliance, 4- Comment. One commenter retain them, and the condition of a to act on possible noncompliance, and recommended that the records lo be record required for NRC inspection *is to examine facts as necessary following retained under 10 CFR Part 20 be mutually *beneficial to the applicant or any incident. In the situation alluded to addre11&ed in this rule. licensee and *to the NRC. The Paperwork by the*commenter, large irradiators and Response. The CommiBBion believes Reduction Act of 1980 (44 U.S.C. 3spt et large medical licensees po88eBBing ... that the pending amendment to'10 CFR seq.) added impetus to the NRC's . significant quantities or radioactive Part 20 is tllie most efficient and interest in the regulatory burden material are inspected annually, hence economical means for addressing the imposed on an applicant or a licensee the three year minimum period is records contained in that part. The by the-preparation and retention of adequate. amendment to 10 CFR Part 20 will meet - records. Furthermore, OMB's regulations The remaining fifteen commenter& all of the record retention requirements implementing the Paperwork Reduction agreed with the proposed changes with established by thi11 rule. This approach Act require that record retention the following general comments: will ensure that the recordkeeping requirements imposed by Federal 1. Comment. Three commenter& requirement& ar.e consistent with regulations contain specific retention recommended that the CommiBSion change& to the technical and periods. The NRC complies_ with the specify in the "statement of administrative aspects to Part 20 that Act's requirement for Office of Considerations" that a Technical

• may result from the public comments 4-SC-4

PART 4

• STATEMENTS OF CONSIDERATION and additional staff review of the records beyond the retention period of all NRC required records. While it is requirements included in that part. required by NRC regulation&. The intent not ideal for all situations, it is a

5. Comment. One commenter of retention periods for recordkeeping reasonable period which generally recommended that the increased record requirements is to establish th£: satisfies NRC's record needs and retention periods remain as they arc minimum retention necessarv fo~ conforms to 0MB guidelines while not currently specified in 10 CFR Chapter I compliance with NRC regula.tions. imposing any undue burden on and another specifically questioned the Should licensees or applicants elect to licensees. The Commission believee*that increased.retention period for 53 retain records beyond the retention any added burden on licensees by an records. period required by the NRC, they have increase, such as from two to three Response. The Commission has that option. Licensees should be aware, years, is slight and is balanced by the modified many retention periods to however, that NRC's recordkeeping benefit of a uniform system for overall streamline and standardize its record requirements apply only to NRC records retention.

retention requirements and to reduce the requirements for the information. Other 12. CommenL One commenter stated burden imposed by those requirements. Federal. State. or local agencies may that the requirements in § 71.135(a) to

• There are instances in which an have requirements that may apply now keiip QA records for three years beyond individual record retention period has or in the future. the oate the licensee last engages in the been increased However, we believe 9. Comment One commenter stated activity for which the QA procedures that, in general. the rule will result in an that the recordkeeping requirement were developed and to keep superseded ultimate benefit to the majority of the pursuant to § 50.54(p)(2) has not been portions of written procedures for three applicants and licensees as well as to addressed and suggested that the years are unnecessary and should be theNRC. retention be changed to three years. deleted. The commenter believes that it

6. Comment. One commenter stated Response. The omiSBion of the is sufficient to retain the QA records that the proposed rule changes the i:ecordkeeping requirement contained at only for the life of the package to which current requiremettts of § 74.31 from a § 50.54(p)(2) was en oversight and has they apply.

perfonnance-oriented rule to one been included in the final rule with a Response. The Commission disagrees containing specific recordkeepL"lg three year retention period. with this comment. Quality aBSurance requirements. The commenter believes records.such as design, fabrication, or 10; Comment One commenter that the proposed chmiges complicate predetermination tests, must be retained suggested that the minimum retention the licensee's ability to devise its awn beyond the end of the service life of the recordkeeping system, compatible with period be c h ~ to "three years or until the next inspection, whichever is package so that they will be available its l7Wl1 operations, in accordance with a longer," stating that three years is an for examination by the Commissfon in perfonnance oriented role, and that the insufficient retention period because any analysis following an accident.. proposed changes are unnecessary and inciµent. or other problem involving should be eliminated. . some records would be destroyed before. Response. The Commission has the next inspection. public health and safety. reevaluated the proposed changes in Response. While some inspection 13. Comment. One commenter stated light of this comment and has frequencies are longer than three years, that the requirement in § 70.24(a)(3) to determined that the specific the Commission believes that records retain the superseded portion of enmneration of records is not necessary. covering the previoUB three year period emergency procedures is unneceBBary The current perfonnance-oriented rule are sufficient to permit the NRC to judge and should be deleted. adequately provides for retention of compliance or noncompliance, to act on Response. The Commission disagrees records to demonstrate compliance with possible noncompliance. and to examine with the comment. It is essential that, the Commi89ian's requirements. The

• necessary facts following an incident. following any incident in which the use proposed change to § 74.31 has been Licensees possessing materials which of emergency procedures may be
• deleted from the final role.
• could pose a significant risk to public involved, NRC be able to examine aU of

7. Comment. Two commenter& stated health and aafety. such as irra-diators or the facts that existed at the time of the that the records retention period for the large medical facilities, are inspected. incident. inclu,ding the emergency Safety Analysis Report is not obvious annually. The three year period, while procedures that were in effect at that and needs to be addressed. not ideal for all situations, is a time. Because it is possible, if not .

BespODBe. Section 50.71(e) requires reasonable period which generally probable, that emergency procedures licensees to periodically update their satisfies NRC's record needs and may be revised following an emergency FSAR's. Implicit in this requirement is conforms to .OMB guidelines by incident based on the licensee's the retention of the updated FSAR. by providing for the availability of i:eairds experience in using the procedures, it is licensees for the duratian of their while not imposing any undue burden on neceBBary that superseded portions be licenses;,The Commiaion believes that the licensees. *retained for the minimum period, three the retention period of an updated FSAR 11. Comment One commenter stated years. is inherent in its existing regulations. that increases in retention periods from 14. Comment. One commenter stated Nevertheless,.10 CFR 50.71(e)(6) has two to three years are unnecessary. The that the requirement in§ 70.42(d) to been added to the rule to specify that commenter believes that present -keep copies of licenses, certificates, and the updated Final Safety Analysis inspection cycles make .two ye~ an other documents used to verify that a Report (FSAR) is to be retained by the .adequate retention period and suggested recipient of licensed material is licensees until the NRC terminates their that the current two year retention authorized to receive it is not necessiµ-y licenses. periods for records contained in and should be* deleted. *

a. Comment One Commenter stated _§ § 70.22(k), 71.9(a). and 110.53(b) be Response. The Commission disagrees that the rule doea not make it clear that retained. with the comment and believes that the retention periods specified ere Response. AB explained in the NRC needs to be able to examine these minimum.requirements. proposed rule, the three year peri.od WIIJI records to ensure that licensees are Response. The commiBBion does not selected as one of four periods to complying with the requirement that object.to licensees/applicants retaining provide a uniform system for retention they ve~ the authorization of the 4-SC-5

PART 4

• STATEMENTS OF CONSIDERATION persons receiving licensed radioactive Appendix B, Criteria I.C., that a physical I 73.40fb) BIS examples cf this material. test be performed within thirty days of a discrepancy.

15. Comment. One commenter stated physical examination was deleted in Response. The record retention that the backfit rule, § 50.109, should August 1987 and* should not be periods for §§ 73.26{e)(3) and 73.40(b}

apply because the recordkeeping rule reintroduced. differ because the individual adds new record retention requirements Response. The requirement to conduct requirements are different. Section 73.26 to various sections ofto CFR Part so. a medical examination within the covers lli:enses to transport special Response. The Commission disagrees preceding 30 days of the physical fitness nuclear material (SNM} where with the comment. Section 50.36 is the qualification was revised after possession of the material occurs at only section within Part 50 that has been publication of the proposed rule. On discrete times and tenninates when the revised to clarify recordkeeping January 7, 1988 (53 FR 403) Criteria I.C. last shipment is completed through requireD1ents.J-lowever,allrecords was revised to state that subsequent to acknowledged receipt by the receiver. specified in this section are currently the medical examination, physical On the other hand, I 73.40{b) covers required by other provisions contained fitness shall be demonstrated. This licenses to hold SNM at fixed sites in 10 CFR Chapter L As stated on page revision is reflected in the final rule. where possession of material is more 41443 of the "Federal Register Notice" continuous and it is more difficult to for the proposed rule published October 19. Comment. One commenter stated that the requirement in§ 73.70(d) to list confirm that possession has ended and 28, 1987, the backfit rule, 10 CFR 50.109, the license can be teiminated. does not apply to the records retention the "reason for entry," into a vital area rule. . was deleted and should not be Environmental Impact: Categorical

16. Comment. One colillllenter stated reintroduced. Exclusion that the specific uniform record Response. The Commission agrees The NRC has determined that this retention periods being proposed do not with the comment. The requirement has regnlatian is the type of action descnoed conform to the retention periods for the been deleted*from the final rule. in categorical exr:hurions 10 CFR Nuclear Liability Insurance Records 20. Comment. One commenter noted 51.22(c}(1} and (3). Therefore. neither an identified in ANI/MAELU Information that§ 50.49(d) contains revised wording emrinmmental impact statement nor an Bulletion B0-1A which requires the that apparently makes this section enviromnental assessment has been records to be maintained for the life of redundant with existing § S0.49(j). prepared fur thia final regnla tton.

the .nuclear liability insurance policy Response. The Commission disagrees plus ten years. Paperwork Redut:tion Act Statement that the recordkeeping requirement Response. The record retention contained in§ 50.49(d) is redundant to .This final rule mneuds information requireD1ents set forth in the 10 CFR th~t contained in § 50.4~(j). Section collection l'equirements that are subject Chapter I establish the DliniDlum S0.49(d) requires the retention of the list to the Paperwotk Reduction Act of 1980 retention periods necessary for NRC to of electrical equipment important to (44 U.S.C. 3501 et seq.). This final rule ensure CODlpliance with the safety and safety and information specified in -has been submitted to the Office of health aspects of the nuclear paragraphs (d)(l), (2), and (3) only. Management and Budget for review and environment and for the NRC to Section 50.49U) requires the retention of approval. RequiTements in nineteE!Jl accomplish its mission to protect the records to support the qualification of parts included in this rule were assigned public health and safety. Retention of equipment. but reiterates that there are approval DUmbet$ by the Office of records beyond the miniinum period is qualification records contained in Management and Budget u ffilllows: at the option of the licensee. Licensees § 50.49(d) that must be retained for the Part *4-3150-0053;. Part ll-3150-0062; should be aware, however, that NRC's same period. Part 25-3150-0046; Part 3o-3150-0017; recordkeeping requirements apply only 21. Comment. One commenter Part 31-3150-0016; Part32-315D-0001; to NRC requirements for the recommended that the Commission Part 34-3150-0007; Part 35-3150-0010: information. Other FederaL State, or update Regulatory Guide 10.1 to clarify Part 40-3150-0()20; Part 50-3150--001.1; local agencies may have requirements andsimplifyrecordkeeping Part 60-3'ISD-0127: Part 61-3150-0135; that may apply now or in the future. requirements. The commenter also Part 7 o - 3 1 ~ Part 71-3150-0008;

17. Comment. One commenter stated Part 73-3151J-a112.; Part 74-3150-0123:

that the lack of clear definitions for recommended that all recordkeeping requirements be consolidated into a Pert ~150-0055; Part. 95-31So--0047; terms such as "legible" and - Part 110-:mm-0036. "authenticated" has the potential to single location within the regulations. create substantial confusion as to what Response. Regulatory Guide 10.1 is a Regulatory Flexi"bility Certification records are acceptable. partial listing of regulatory reporting As lerfllllW by*the Regulatory Response. The following definitions of requirements. As indicated in the Flexibility Ad ml980, 5 U.S.C. 605(b}. "legible" and "authenticated" apply to Supplementary Information, NRC will :and NRG Size Stltndards- f50 FR 50241: records retained under the NRC's publish a separate compilation of NRC December9; :t985). the Commission regulatory authority. The term "legible" regulatory reporting and recordkeeping hereby certifies that this' nrle does not . denotes that the records can be read

• requirements in the NUREG series. The haft: a significant ecunomic impact upon and deciphered within a reasonable Commission believes the publication of a substantiaf nmnber of small entities.

amount of time. "Authenticated" . these compilations will preclude the need to group all recordkeeping . The rule amenas p~ of the NRC denotes that the data has been verified regulations by specifying II' period to for completeness and accuracy by an requirements in fl single location within retain each required record. The rule authorized individual and that it is a the regulations. affects most facility and mlltel'ials true representation of the original data. 22. Comment. One commenter licensees by reducing the rep:l.rtory This also addresses one commenter's questioned why the retention period for burden of retaming reamfs far an concem about what constitutes a record safeguards contingency plans varies unnecessarily long or inddiniteperiod. capable of producing a clear copy. depending upon-whether the special Therefore, it is RUI expected to hne a

18. Comment. One commenter stated nuclear material is in transit or at a significant economic impact on any -

• that the requirement in 10 CFR Part 73, fixed loca1:ton and cited§ 73.26(e)(3) and licensee. CommenlB on the expected 4-SC6

PART 4

• STATEMENTS OF CONSIDERATION economic impact of this rule on small t,nforcrmwnl stand.arcls. In addition. information. the regulations stute that entities were solicited: however. none rnferrmct, to UFAS bv all Fetleral new construction or alteration were received. funding agt!nc:ilH1 wili reduce potential accomplished in accordance wilh the conflicts when a building is subject tu "American National Standard Backlit Analysis the section 504 regulations of more than Specifir;atic.ns for Making Buildings and The Commission has determined that one Federal Agency. Facilitil,s Accessible to, and Usublc by,

.the backfit rule, 10 CFR. 50.109, does not EFFECTIVE DATE: January 18, 1991

• the Physic:ally Hundicapped" pulilishccl apply to the rule. The rule is purely ADDRESSES: Copies of this final by the American National Standards administrative in nature, and therefore regulation tirll available on tape for lnstili1tu, Inc. (ANSI Al17.1-1961 (R1!J7'.l) does not result in the "modification of or persons with impaired vision. They ma}' (ANSI)) meets the requirements of addition to systems, structures, be obtained rrom the Coorclinulion and section 504. Three agencies (the components, or design of a facility * *
• Review Section, Civil Rights Division, Department of Agriculture, the or the procedures or organization Department of Justice, Washington, DC Environmental Protection Agency, and required to design. construct. or operate 20530; (202) 724-2222 (voice] or 724-7678 the Small Business Administration) a facility* * *", See 10 CFR 5D.l09(a)[1). (TDD]. reference the 1980 edition, ANSI Al17:l-1980. The revision set forth in this List of Subjects ia 1D Cf'R. Parb I. n, 25, FOR FURTHER INFORMATION CONTACT: document will reference UFAS in place 30, 31, 32, 34, 35, 40.. 50, 60, 61. '10, 71, 73, F.dward E. Tucker*at (301) 492-7106
• of the current standard.

74. 1a, 95. and no (voice) or (800) 63B-a282 (TDD). On August 7, 1984, UFAS was issued SUPPLEMENTAR'I INFORMA.TION: On .by the four agencies establishing Reporting and'recordkeepmg March 8, 1989 (54 FR 9966), fifteen

• standards under the Architectural requirements. agencius jointly published a Notice of Barriers Act (49 FR 31528 (se,1 For the reasoos aet unt in the Proposed Rulemuking (NPRMJ that *dJscussion*in/ra)J. The Departmcmt of premnbie and under the _authority of the would amend their existing regulations *.Justicll (DO)), as tho agc,ncy responsible Atomic P.nergy A~ of 19M. as. amended for enforcement of section 504 of the. under Executive Order 12250 for the F.nergy Reorganization Aa cf 1974, Rehabilitution Act of 1973, as umended, coordinating the enforcement of stiction as amended. and 5 U.S.C. 553. lhe NRC in federally assisted programs or* * *  ;,04, hns r1?cr1_mmcmled th{t!agcndqs is adopting the following amendments to activilies lo include a cross-reference *lo* .
• amend their sectio11 504 regulations for 10 CFR Parts 4. 11, ZS, 30, 31. 32. 34, 35, UFJ\S. The agnncir.s rr.ceived several*** .
• federally assisted programs or activities 40, 50, 60, 61, 70, 71, 73, 74, 75,. 95. and Comr:wnts from States, architer.ts. to establish that, with respect to new 110. iull'rest groups. and inclividunls. construction and alterations, compliance

                                                   *virtually all commenters supported the           with UFAS shall be deemed to be 55FR52136                                          -govemmentwide reference to UFAS for              compliance with section 504. Because Published 12/19/90                                  new construction and alterations subject         some facilities subject to new Effective 1/18/91                                                                                    construction or alteration requirements to sr.ction 504. As the New York State Office of Advocnte for tht1 Disabled put          w1der section 504 are. also subject to the 10 CFR Part 4                                                                                        ArchHectural Barriers Act, it, the use of UFAS by all the l'cdera I funding agencies "will greatly hlllp to          f!OVerrunentwide reference to UFAS will Enforcement of Nondiscrimination on                                                                  diminish the possibility that recipients reduce confusion for architects.

the. Basis of Handicap in Federally of Federal financial assistance would developers and building officials." Assisted Programs face conflicting enforcement standards. The Federal agencies individually In addition. reference to UFAS by all AGENCIES: ACTION, Departments of analyzed the comments. On the basis of Federal funding agencies will reduce Agriculture, Education, Energy, Health . their analysis, they decicled lo adopt the* potential conflicts when a building is

• and Human Services, State, and common rultl. They. therefore, arc able subject to the section 504 regulations of Veterans Affairs: Environmental to publish it jointly, and 11m doing so in more than one Federal agency.
• Protm:tion Agency, International order to minimize c:osts and expedite its Development Cooperution Agency, issuance. The rule adopted by each Background of Accessibility Stal\dards Nutionnl Aeronautics rind Spac:e agency will be codified in thut agency's The Architectural Barriers Act of 1968, Administrcition, National Founcl11tion un portion of the Code of 1"eder11l 42 U.S.C, 4151-4157, requires certain the Arts and the Humanities, National Regulafions, as indicated in the Federal and federally funded buildings Endowment for the Arts and National
• information provided for th*e individu11l to be deslgned, constructed, and altered.

Endowment for the Humanities, agencies below. in accordance with accessibility Natiunal Science Foundation, Nuclear Background standar-0s. lt also designates four Regulatory Commission, Small Business* agencies (the General Services Administrntion. Section 504 of the RehHbilitation Act Administration, the Departments of ACTION: Final rule. of 1973, as amended (29 U.S.C. 794), Defense and Housing and Urban provides in part that: Development, and the United States

SUMMARY

This common rule amends . No otherwise qualified individual with Postal Service) to prescribe the the regulations issued by the agencies handicnps in the United States* * ~ shell, accessibility standards. Section listed above for enforcement of section solely b1* reason of her or his handicap, be 502{b){7) of the Rehabilitation Act o!

504*of the Rehabilitation Act of 1973, as**

• excluded from the perlir.ipatiun in, be denied 1973, as amended, directed the amended. in federally assisted programs the benefits of. or be subjected to Architectural and Transportation or activities to.include a cross-reference discriminulion uncfor any program or ar.livil)' BarriC'l'S Compliance Board (ATBCB) to to the Uniform Federal Accessibility receiving Fedora! financial assislunce ' *
• issue -minimum guidelines and Standards (UFAS). Because some The above listed 11gencies' existing requirements for these standards. 29 facilities subject to new construction or section 504 regulations for federally U.S.C. 792{b)(7J. The guidelines 1 now in ulteration requirements under section assh,ted progr11ms or activities require 504 are also subject to the Architectural that new construction be designed and Barriers Act, governmentwide reference built to be accessible and that to UFAS will diminish the possibility 'The minimum guidellnea were est11l,lishc,d on alterations of focilitills he made in an Augusl 4, 1982 (47 FR.33864), end umended on that re.cipients of Federal financial nccessiblc manner. F.xc:ept as olhc:rwisl! Suplcmber 14, 1988 (53 PR 35510], Pebruary 3, 11189

1Hsistance would face conflicting noted_ in the additional supplenwntnry (54 FR 5444'), uad August 23, 1989 (54 PR 34977).

4-SC7

PART 4 STATEMENTS OF CONSIDERATION effect are found at 36 CFR part 1190, 2 Effect of Anumdment dimensions of an elevator car be at least In 1984, the four standard-setting 68 inches or 60 inches (depending on t~e

• Except as otherwise noted in the location of the door) on the door openmg c1gcncies issued UFAS as an effort t~ additional supplementary information
• miniml:>:e the .differences among tbr.ir for individual agencies, the agencies' side, by 54 inches, if the clear floor er~a Barriers Act s1andards, und among current section 504 rules require that and the configuration of the car pernuts

!hose standards and accessibility new facilities be designed and wheelchair users to enter the car, make standards used by the private sector. constructed to be readily accessible to a 360' turn, maneuver within reac~ of The General Services Adrninislration and usable by persons with handicaps controls. and exit from the car. Th18 (GSA] and Department of Housing and and that alterations be accessible to the departure i,a permissible because it .

• Urban Developmen1 *(HUD) have results in at:eess that ts ~fe, convenient, incorporated UFAS into their Barriers
• maximum extent feasible. The amendment does not affect these and independent. and therefore .

Act regulations (see 41 CFR subpart 101- substantially equivalent to that provided 19.6 (GSA) and 24 CFR part 40 (HUD)). requirements but merely provides that byUFAS. In order to ensure uniformity, UFAS was compliance with UFAS with respect to With respect to UFAS11coping designed to be consistent with lhe buildings {as opposed to "!facilities."' a requirements, it would be permissible in. scoping and technical provisions of the broader term that encompasses some circwnstancea w depart from the ATBCB's minimum guidelines and buildings as well as other types of UFAS new construction requirement af requirements, as well as with the property) shall be deemed compliance with theso requirements with respect lo one accessible principle entrance at technical provisions of ANSI A117.1- those buildings. Thus, for example, an c1ich grade flonl' level ofa building (see 1960. ANSI is a private, national alteration is accessible "to the maximum UFAS section 4.1.2(8)), if safe, * .organization that publishes * . extent feasible" if it is done In- convenient, and incl~pimdrml accei;s ill recommended standards on a wide accordance wit!LUFAS. It should be provided lo each level of the new variety ()f subjects. The original ANSI noted that UFAS contains special far:ili!y by a wheelchair usm* from an A117.1 was adopted in 1961 and

• requirements for alterations where acc:misible prinr.iple ent!"ance. This reaffirmed in 1971, The current edition, meeting the general standards would be denarture would not be permissible if it issued in 1986, is ANSI Al17.1-1986. The impracticable or infeasible {see, e.g., required an individual wilh handicaps lo 1961, 1980, and 1986 ANSI standards are
• UFAS sections 4.1.6(1)1b), 4.1..6.(3.).
• travel an extreme.ly long dista~ce to .

frequently used in private practice and reach the spaces served by the 4.1.6(4). and 4.1.7).

• by State and local governments. . , inaccessible entrances or otherwise The amendment also includes provided access thal was substuntiully The final rule amends the agencies current section 504 regulations for language providing tha_t departures !rom lens convenient than that which Wlluld particular UFAS technical end scopmg be provided by UFAS.

federally assisted programs or activities to refer to UFAS.

• requirements ere permitted so long as It would not be permissible for a the alternative methods used will rtmipient to depart from UFAS' .

The agencies have determined that provide substantially equivalent or they will not require the use of UFAS, or requirement that, in new consli"Ut.:hon of greater access to and utilization of the a long-term care facility, at least 50% of any other .standard, as the sole means

• building. Allowing these departures by which recipients can achieve all patient bedrooms be accessible (see from UFAS will provide recipients with UFAS section 4.1.4(!J)(b)), by using large compliance with the requirement that necessary flexibility to design for ..

new construction and alterations be accessible wards that mnke it possible special circumstances and will facilitate for 50% of nll beds in !he facility t1J bP. accessible. To do so would the application of new technologies that unnecessarily restrict recipients' ability .. accessible to individuals with are not specified in UFAS. As explained handicaps. The result is that the to design for particular circumstances.

• under "Background of Accessibility In addition, it .IItight create conflicts with* population of individuals with Standards. the agencies anticipate that handicaps in the facility will be State or.local accessibility requirements compliance with some provisions of that may also apply to recipients' concentrated in large wards, while able-applicable State and iocalaccessibility .bodied persons will be concentrated in buildings end that are intended t~ requirements will provide "substantially I achieve ready access and use. It is smaller, more private rooms. Because equivalent" access. In some convenience for persons with hundicaps expected that in some instances circumstances, recipients may choose to recipients will be able to satisfy the is thArefore compromised to such a g1*rmt use methods specified in model building extent, the degl'ee of accessibility section 504 new construction and . codes or other State or local codes that .

alteration requirements by following . provided to personR with handicaps is are not necessarily .applicable to their not substantially equivalent to that applicable State or local codes. and vice .. buildinJJs but that aclueve aub1tantially versa. intended to be afforded by UFAS. equivalent access.

• It should be noted that the Some facilities may be covered by The amendment requires that the amendment does not require that
• both section 504 and the Architectural alternative methods provide
• existing buildings leased hy redpient~

Barriers Act. Nothing in this rule "substantially" equivalent or greater mP.el. the sta11dards for new constror:t1.on relieves recipients whose facilities are access, in order to clarify that the and alterations. 3 Rather, it continues the covered by the Barriers Act and that alternative access need not be precisely current Federul practice under section Act's implementing regulations from*, equivalent to that afforded by UFAS. 504 of t.*eating newly leased buildings as complying with the requirements of Application of the,,substantial!y subject to the program accessibility UF AS or any other Barriers Act . equivalent access language wiU depend standard for existing facilities. shrndard or requirements that may be m on the nature, location, .and intended use

• UFAS contains specific requirements effect. of a particular buil~. G~r.ally, for additions tr> existing buildings (see
• alternative methods wdl :aat~afy the UFAS scmtion 4.1.5).. The amendmcnl requirement if in material respects the 1*efor:cioi:r?'> UFAS for "design, new access is substantially equivalent that 1:,instruc:1ion. or alleralion oi buildings,"

    'The ATIICB Office ofTechnicnl Service* la avullohle lo provide lechnicfll assistance lo which  would he provided by UFAS in rcr.ipients upon Tequesl reluling ln_ the "lim'i~uli.on of     such respects as safety. convenience,         --;.rhfs ~ the 1;mJO t!Vttn       i( lJF,\S ia rnvi~l\d to arr.hi1ectur11i berriera. lts addr11&s ts: U.S. A111CD,        and independence of movement. For              hu consi~lunt with u 1980 a111011dmcnl lo Iha I\Tl3CB Ol'foce ofTechnlcalServices, 111118th Street, NW..             example, it would be permissible to            minim11m guidr.lin,Je h> pruvi~Jc minima;m &~i.t.!elinue Suite 500 Washington. DC 20036. 7he lelt:phone                                                                011,.I mquh,m1,mls for ac~eKs1bla leased flt1J1hlio&, On.
.numberl~ '(20:!J~~7834tvolce/"ffiDJ. Thuris not a. **

depart from the technical requi~ment of S1111tnmlmr H, 1088 (53 ~'R al 355~0): the A'l'Bl.'13 loll free number. UFAS section-4.10.9 that .the inside a111,mrlnd its minimum ,iuidnlines lo eslohllsh

                                                                                                                        .                                 mNI'lNUED 4-SC-8

PART 4

• STATEMENTS OF CONSIDERATION and does not m1mtion additions con!rol mec~lilnisms and opt!l'ating construction, or alteration of buildings in sp11cifically. For pul'poses of section 504, equi~'"?en.t lor a large heating and air conformance with sections 3-8 of thP.

an .iddition is considered "new cond11lonmg system, and controls for a . Uniform Federal Accessibility

• 1:,.,;:struction" or "alteration." Thus, the security systeni. Since the room would Standards [USAF) (Appendix A to 41 foek of reference to additions in the l'Ule be frequented by employees, it Is not CFR Subpart 101-19.6) shall be deemed should not be read to exempt additions .excepted from UFAS. ln this case. the lo comply with the requirements uf this fr<>m the accessibility requirements:* control me,:hanisms, including switches, ,.ec:lion with J'el'!pecl to those buil.dings.

Bµildings under design on the thermostats, and alam1s, used by Dnpart1 1;*es from particu:11r w,:;hnical nnd effective date of this amendment will be t1mploy,~es should be on an accessible scoping rf.iquirements of UF.'\S by tlw governed by the. amendment if the date path and mounted at the proper height. us,1 of other methnds am pcirmi:t(,i.1 thut bids were invited falls after the The revision also provides that * . where s"i:1bstantial.ly equi\*ulen! or effective datf!. This interpretation is -- whether or not the recipient opts to greater access lo and us11Lilily of the consistent with GSA's Architectural follow UFAS in sati.sfaction of the ready building is provided.

• access requirement, the recipient is not (2) For purposes ofthis section, Barriers Ar.t rt!gulation incorporating UF'AS, at 41 CFR subpart 101-19.6. required to make building alterations
• section 4.1.6(1){g} or UFAS shall lai that have little likelihood of being inlerpret~d to exempt from !he
• The revision includes language requirnments of UFAS only mr:ch,,nir.:,11 modifying the effect of UFAS section accomplished without i;emoving or' altering a load-bearing structural rooms and other spaces that. br.cuuse of 4.1.6(1)(g), which provides an exception their intended use. will not require to UFAS 4.1.6, Accessible buildings: member. This provision does* not relieve recipients of their obligation under the acr;essibility to the public or Alteration.~. Section 4.1.6(1)[g) of UFAS beneficiaries or result in the states that "mechanical rooms and other current regulation tll ensure program 1rn1:essibili tv. employment or residence therein of spaces which normally are not pms<ms with physical bandic11ps.

frequented by the public or employ1~es _Several agenciP.s' section 504 (3) This section does not reouirc of the building or facility or which by mgulations for federally assisted mcipients to make building ,tlieralions nature of their us~ are not required by programs are contained in parts entitled tlwl hav~ little likclihootl of bci11g the Architectural Barriers Act to be "Nondiscrimination on the basis of ur:co~plisherl without n1111oving or accessible are excepted from the handicap in programs and activities 11lte.r111g a load-heming slruclural requirements of 4.1.0." Particularly after* receiving or benefiting °from Federal member. the developmrmt of specific UFAS

• financial assistance." This document deletes the phrase "or*benefiting from" ADDITIONAL SUPPLEMENTARY provisions for hous\ng allcrations and INFORMATION:

additions, UFAS s1~ction 4.1.6(1)(g) could from those titles. The phrase is being be read to exempt alteration.a to deleted pursuant to Department of Paperwork-Reduction Act Statement privately owned residential housing, Tmnsportation v. Pamlyzed Veterans of America, 477 U.S. 597 (1986), which held This final rule does not contain a new which is not covered by the Or l!mEmded information collection Architectural Barriers Act wtless leased

• thnt air transportation services provided

                                                                   !:>Y airlines were not part of the covered   requiJ;ement aubjt1ct. to ~e. raperwork by the Federal Government for                                                                                   Reduc:tion A,ct of 1980 [44 tJ .S.C:. 3501 et 1rnbr.idized housing programs. This -                              p1*ogram or activity because the airlines were not the intended recipient of the       seq.). Existing requirements were 1ixm1ption, howe.vP.r, is not appropriate                                                                       approved by the Office of Management Federal financial assista~ce to airports,*

1111~er section 50.4, which protei:ts and Budget approval number 3150-0053 even if the airlinr.s benefited from that beneficiaries of housing provided as part assistance. The passage of _the Civil _- List of Subjects in 10 CFR Part 4 of a federally assisted program. Rights Restoration Act of 1987, 20 U.S.C. Consequently, the amendment provides_

• Administrative practice and 1687 note (1988), does not overrule or that, for purposes of this section, section* procedure. Blind, Buildings, Civil rights, alter this result. S. Rep. No. 64, 100th 4.1.0(l)(g) *ofUFAS shall be interpreted _ . Cong., 1st Sees. 29 (1987). * * * *
• Employment, Equal employment to exnmpt from the requirements of opportunity, Federal aid programs, This: document has been reviewed by UFAS only mechanical rooms and other Grant programs, Handicapped, l.oun spaces that, bec.1uil1? of thr.ir intended DOJ. It is an adaptation of a prototype prepared by DOJ under Executive Order prog~ams, Reporting and recordkccping use, will not J',;quil'e acces;;ibiiitv to th!! requirements. Sex discrimination.

0 12250 of November 2, 1980. The ATBCB public or benefici1-1ries, or resull in the has been consulted in the development

.emplul1ment. or re!!idence therein of of this document in accordance with 28 persons with hundir.aps.

CFR.41,7. This exception does nol 11pply lo 11 - The regulation is not a major rule room merely because it contains within the' meanirig of Executive order mechanical equipm,mt. For instance, the 12291 of February 17, 198i, and, exeeplion shall not be re.;d to exempt therefore, a regulatory, impact analysis from the i*equirement!! of UFAS a has not been prepartJd. As required by "mnchani.;al room" with a pholocupier, the Regulatory Flexibility Act, it is mq11',rrm11mls fo1* srand,iril, for buildings h*asetl by hemby certified that this rule will no\ 111,: r_,:dm*al G11v,1rnmoint. 36 CFH non.a, 1w1mJ. The havr. a significant impact on small 1*w1mn;n11ml-s iipJ1l.v tu lemn!d hnili.fo1ga ,~,._,m il' th,1y business entities. nrr: n?t altered: ~n1~tinn *rHI0.:',4(:1) rr,;:.:Jrof! th.it ,any bu,l,.lmg 11r r,11:1hty ihnt Is 111 bi, lCJau.,,J hv 1h1*

...i":1.IB1*al ;,;o\lernment, wiUU>ut having b,,;n d,minn~d         Text of the Common Rule 01* i:onstl'Ur;tod ill acc11r.!Hnmi wilh ii* speGifi1:111io11s, uomply wilh lh~ sland11tJs for ,1ew ,;oncfrUl:tion                     The I.ext of the common rule, 11s I§ 1190.31). 1111:orporute the featurAs listed in Iha               adopted by the ag,mGies in this sland11rds for al1tm1tionH (§ 1'1911.33(c)J, or, if no such         document, appc~ars bell)w.

Hpm:a Is uva.Jable, b1? a!t,~re,i 10 in1;l11dH certain iU.:r.mniihle eleanenlo *"nd spuCl!H. 'l'hnse requir,?numts § ---*** wi!? ~I.! iucorporatm.1 into Ul'~AS and wHJ apply l1) lnnhhngrt 1:overud by lhP. Arr.hiliicl1m1J J1,1rri,?r!'i /\!-:1. l i,1wevar, e,islinM buildlngs, 11,;,s,,d hy rP.ni11i*ml* l---> Co11Jom1a,we with-Uni/arm a,*H n,>l 1:0,*m*,?i.J by the Au,I unle11t1 1hr. buildin"'H ar,! Federal Accessibility Standards. (1) l,> l>1? altered. Effective as of January 1a; 1991, design, 4-SC-9

UNITED STATES NUCLEAR REGULATORY COMMISSION RULES and REGULATIONS TITLE 10, CHAPTER 1, CODE OF FEDERAL REGULATIONS-ENERGY ADVISORY COMMITTEES...,. ST~TEMENTS OF CONSIDERAJJQ_N 53'FR43419. guidelines and management controls for committees established by that agency. Published 10/27/88 Federal agencies concerning the NRC implemented this requirement by Effective 10/27/88 implementation of the Act. issuing Advisory Committee regulations Section 8(c) of the Federal Advisory (10 CFR Part 7} in 1975. Relocation of NRC's Public Document Committee Act directs the head of each The Act also requires the Room; Other Minor Nomenclature Federal agency to establish uniform establishment of administrative Changes administrative guidelines and - -

• guidelines and of management controls*

                                              *management controls for advisory            on a government-wide basis (section See P111rt 1 Statements of Consideration        committees established by*that agency.      7(t:)). In implementation of this 54FR26947 In 1975, the Nuclear Regulatory             requirement, the General Services Published 6/27/89                              Commission implemented this                 Administration issued a final rule, Effective 6/27/89                              requirement by issuing NRC's Advisory       effective January 4, 1988, providing Committee regulations (10 CFR Part 7).     .administrative and interpretive 10CFR Part 7                                   The present revision of NRC's               guidelines and management controls for regulations is intended to reflect          Federal agencies concerning the RIN 3150-AD25                                 _administrative and management               implementation of the Act.

Advisory Committees; Policies and changes that have taken place since

• Because most of NRC's regulations on Procedures NRC's regulations were published in the subject have not been revised since
• 1975 and to maintain consistency their issuance in 1975, they do not AGENCY: Nuclear Regulatory between NCR regulations and those incorporate all of the requirements of Commission. issued by the General Services the GSA rule. For example, GSA's

'ACTION: Final rule. Administration in 1987.

• regulations make it clear that whenever Because*these amendments relate to an agency proposes to establish an

SUMMARY

This final rule amends the matters of agency management or advisory committee, it is required to regulations that define the policies and personnel, good cause exists for omitting submit a written request for review of procedures to be followed by the notice of proposed rulemaking and the-proposal to GSA's Committee

• Nuclear Regulatory Commission (NRC) public procedures thereon, as Management Secretariat, and the letter in the establishment, utilization, and unnecessary, and for making the of request must contain certain termination of advisory committees. amendments effective upon publication prescribed information. While NRC's This amendment is intended to reflect in the Federal Register. current regulations contain references to administrative and management consultation with the GSA Secretariat, changes that have taken place since Environmental Impact: Categorical Exclusion* the form of consultation appl!ars to be at NRC's regulations were published in the Commission's option.

1975 and to maintain consistency The NRC has determined that this NRC's current regulations ~lso do not between NRC regulations and those final rule is the type of action described reflect many of the administrative and issued by the General Services in categorical exclusion 10 CFR

• management changes that have taken Administration in 1987. 51.22(c)(l}. Therefore, neither an place since 1975. For example, the NRC EFFECTIVE DATE: June 27, 1989. environmental impact statement nor an regulations do not reflect the fact that FOR FURTHER INFORMATION CONTACT: environmental assessment has been the principal functions of guiding and Susan Fonner, Office of the General prepared for this rule. coordinating the administration of the Counsel, U.S. Nuclear Regulatory Paperwork Reduction Act Statement Act, which the Act vested in the Commission, Washington, DC 20555, President and the Director of the Office telephone (301) 492-1632. This final rule contains no information of Management and Budget, were SUPPLEMENTARY INFORMATION: The collection requirements and, therefore, transferred to the Administrator of the Federal Advisory Committee Act (Pub. is not subject to the requirements of the General Services Administration by L. 92-463, 5 U.S.C. App.) was enacted in Paperwork Reduction Act of 1980 (44 Executive Order 12024 of December 1, 1972 to regulate the formation and U.S.C. 3501, et seq.). *
• 1977 (42 FR 61445). They also do not operation of advisory committees by Regulatory Analysis reflect the current operational Federal agencies. Pursuant to authority responsibilities of the Chairman of the provided by section 7(c) of the Act and In 1972, the Congress*enacted the Commission in such matters as

*Executive Order 12024 (42 FR 61445), the      Federal Advisory Committee Act (Pub.         personnel appointments and General Services Administration has the       L. 92-463, 5 U.S.C. App.) to regulate the    administrative support services.

responsibility for providing government- formation and operation of advisory In view of the above, the Commission wide guidelines on the subject. In committees by Federal agencies. Section has determined that NRC's Advisory implementation of this responsibility, 8(a) of the Act directs the head of-each Committee regulations should be revised GSA issued a final rule in*late 1987 Federal agency to establish uniform 'to make them more consistent with (effective January 4, 1988} providing administrative guidelines and .current administrative and man!!_gement administrative and interpretive management controls. for advisory 7-SC-1

PART 7

• STATEMENTS OF CONSIDERATION practices and the Federal Advisory procedures to be followed by the Committee Management regulations of Nuclear Regulatory Commission .in U1e the General Services Administration. establishment, utilization, and The Commission believes that this termination of advisory committees. The alternative is to be preferred to the action is necessary to correct'a revised 10 CFR Part 7. paragraph that was inadvertently mislabeled and an incorrect cross-Backfit Analysis reference.

The NRC has determined that the FOR FURTHER INFORMATION CONTACT: backfit rule, 10 CFR 50.109, does not Michael T. Lesar, Acting Chief, Rules apply to this final rule and, therefore, Review Section, Regulatory Publications that a backfit analysis is not requir.ed for Branch, Division of Freedom of this final rule because these amendments do not involve any Information and Publications Services, provisions which would impose backfits Office of Administration, U.S. Nuclear as defined in 10 CFR 50.109(a)(1). Regulatory Commission, Washington, DC 20555, Telephone: 301-492-7758. List of Subjects in 10 CFR Part 7 SUPPLEMENTARY INFORMATION: In the Advisory committees, Sunshine Act. Federal Register of June 27, 1989, in the left-hand column of page 26951. make For the reasons set out in the preamble and under the authority of the the following correction: Federal Advisory Committee Act, as amended, 5 U.S.C. App., the*Atomic PART 7-CCorrected] Energy Act of 1954, as amended, the 1. In § 7.10, the second paragraph Energy Reorganizl!tion Act of 1974, as designated as paragraph (b) is correctly amended, 41 CFR Part 101-6, and 5 designated as paragraph (c). In addition, U.S;C. 553, the NRC is amending 10 CFR the introductory text of the correctly Part 7 as set forth below. designated paragraph (c) is revieed'to read as follows: 54 FR28554 Published 7 /6/89 § 7.10 The NRC Advluory Committee Management Officer. 10 CFR Part 7 Advisory Committees; Policies and (c) For purposes of paragraph (b) of Procedures this section, the term "records" includes (but i11 not limited to): Corl'(ictiun In rule c\oc:umcnt 89-15080 beginning on Jjagr. 26947 in the issue of Tue11tl11y, June ~!7, 1989, muke the following corrections:

§7.10 !Corrected]

On page 20951, in the first column. in

§ 7.10(b)(1),  "At" should read "A".
§ 7.11   [Corrected]

2. On the same page. in the second column, in § 7.11(b), in the fifth line.

"expect" should read "except".

3. On the same page, in the second column, in § 7.11(d)(2), in the second line, "adjournment" was misspelled.

54 FR 31646 Published 8/1/89 10 CFR Part7 CRIN 31SD*AD25J Advisory Committees; Policies and Procedures; Correction AGENCY: Nuclear Regulatory Commission. ACTION: Final rule: correction.

SUMMARY

This document corrects a final rule published on June 27, 1989 (54 PR 26947), that defines the policies ancl 7-SC-2

UNITED STATES NUCLEAR REGULATORY COMMISSION RULES and REGULATIONS TITLE 10, CHAPTER 1, CODE OF FEDERAL REGULATIONS - ENERGY PART PUBLIC RECORDS 9 STATEMENTS OF CONSIDERATION

                                                          . 52 FR 759 Published 1/9/87 Effective 1/9/87

• 10 CFR Part9 Revision of Specific Exemptions AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

SUMMARY

The Nuclear Regulatory Commission (NRC) is amending its regulations pertaining lo specific exemptions to the NRC"s Systems of Records. This amendment is necessary to reflect the changes that have been made to Part 9 following the revision end republication of the NRC's Systems of Records notices in their entirety in September 1986 and to inform the public 9-SC-1

PART 9

• STATEMENTS OF CONSIDERATION of this administrative change to NRC Paperwork Reduction Act Statement duplicating service contract. The* revised regulations. fee schedule reflects the changes in This final rule contains no information EFFECTIVE DATE: January 9, 1987. copying charges to the public that have collection requirements andJherefore is resulted from the awarding of the new FOR FURTHER INFORMATION CONTACT: not subject to the requireme_nts of the.

Michael T. Leser, Acti~g Chie~. ;Rules contract for the duplication of records at Paperwork Reduction Act of 19!,lP (44; _. the PDR. and Procedures Branen, Division of . U.S.C. 3501 et seq.). ** * *

• Rules and Records, Office of * * ** Because ibis.is an amendment dealing Ad~inistration, U.S. Nuclear Regulatory List of Subjects in 10 CFR Part 9 with agency*practice and procedures, Commission, Washington, DC 20555, the notice J)rovisions of the Freedom of information. Penalty. .Administrative Procedure Act do not Telephone: 301-492-7086. Privacy, Reporting and recordkeeping apply pursuant to 5 U.S.C, 553(b)(A). In SUPPLEMi:NTARV INFOiihiATION: On requirements, Sunshine Act addition, the PDR users were notified on September 19, 1986, the NRC Systems of For the reasons set out in the July 2, 1987, that the new contract was Records notices were revised and preamble and under the authority of the being awarded and that the new prices republished in their entirety for the first Atomic Energy Act of 1954, as amended. would go into effect on July 9, 1987.

time in several years (51 FR 33150). Most the Energy Reorganization Act of 1974. Good cause exists to dispense the usual systems notices underwent some as amended. and 5 U.S.C. 553, the NRC 3~ay delay in the effective date ' revision, four of the systems were is adopting the following .amendment to because the amendment is of a minor revoked [NRC-1, 6, 7, and 23), and one 10 CFR Part 9. and admin.istrative nature dealing with system* of records (NRC-18) received a agency procedures. new system name because it was 52 FR 29504 Environmental Impact: Categorical expanded to include both of the NRC's Published 8/10/87 Exclusion investigative offices under a single Effec.tive 7 /9/87 system notice. Prior to the revision, 10 The NRC has determined that this CFR 9.95 containea a list of 15 NRC 1DCFRPartl final rule is the type of action described systems of records that were exempt in categorical exclusion 10 CFR

• from certain provisions of the Privacy* Charges for the Production of Records 51.22[c)(1). Therefore, neither an Act of 1974. The revocations of NRC-1, environmental impact statement nor an AGENCY:Nuclear Regulatory environmental assessment *has *been Appointment and Promotion Certificate . Commission.

Records; NRC-6, Development and prepared for this final rule.

                                           . ACTION: Final rule.

Advancement for Regulatory Employees Paperwork Reduction Act Statement [DARE) Records; and NRC-23,

SUMMARY

The Nuclear R~gulatory Personnel Research and Test Validation Commission {NRC) is amending"its This final rule contains no information regulations by revising the charges for collection requirements "and therefore is Records; created the need to delete not subject to the requirements of the those three system names from the list. copying records publicly available at the.

NRC Public Document Room in

• Paperwork Reductioi1 Act of 1980 [44
• The list also needed to be revised to. U.:S;C, 3501 et seq.). '

reflect the change in system name for Washington, DC. The amendment is - NRQ--18 (i.e., Office of Inspector and necessary in order lo reflect the change Backlit Analysis Auditor Index File and Associated *in co_pnng charges ~e"ulting from the Commission's award of a new contract This final rule pertains solely to minor Records became Investigative Offices administrative procedures of the NRC: Index, Files and Associated Records). for the copying of records. - . therefore, no backfit analysis has been Because this is an amendment dealing EFFECTIVE DATE: Jwyil, 1987.

• prepared.

with agency practice and procedures, FOR FURTHER INFORMATION CONTACT: the notice and comment provisions of David L Meyer, Chief, Rules arid List of Subjects in 10 CFR Part 9 the Administrative Procedure Act do not Procedures Branch, Division of Rules Freedom of Infonnation, Penalty, spply pursuant to 5 U.S.C. 553(b)(A). arid Records, Office of Administration Privacy, Repi>rtinB and recordkeeping The amendment is effective upon and Resources Management, U.S.

• requirements, Sunshine Act.

publication in the Federal Register. Nuclear Regulatory Commission. . For the reasons set out in the Good cause exists to dispense with the Washington. DC 2_0555;Telephone: 301-. preamble and under the authority of the 492-7086. , . Atomic Energy Acl.Df 1954, as amended, usual 30-day delay in the effective date because the amendment is of a minor SUPPLEMENTARY INFORMATION: The NRC the Energy Reorganization Act of 1974, and administrative nature dealing with a maintains a Public Document -Room as.amended, and.5 U.S.C. 553, the NRC matter of agency conduct, the revision (PDR) ,at its:lieadquarters.ann1*H is adopting fthe following amendment to and republication* of the NRC Systems of* Street, NW, *Washington. *DC. :The :PDR .10.-CflUlarlil.: . Records and its impact on the contains an extensive collection of information contained in § 9.95. publicly available technical and -52 FR 31601 administrative.records that the NRC 'Published 8/21/87 Environmental Impact-Categorical receives or generates. Requests by the Effective 8/19/87 Exclusion* public for the duplication ofrecords at Statement of Organization and General The NRC has determined that this the PDR have traditionally.been Information accommodated by a duplicating service

• final rule is the type ofaction described SH Part 1 Statements o! Consideration contractor selected by the.NRC. The*

in categorical exclusion 10 CFR schedule of duplication t:harg~s to the 51.22(c)(1). Therefore, neither an '92 FR 49350 public establish~d ln the duplicating Published 12/31/87 environmental impact statement nor an service contract is 11et forth in 10 CFR Effective 2/1/88 environmental assessment has been 9.14 of the CommiSBion's regulations.

• prepared for this final rule. Revision of Freedom of Information The NRC has recently awarded a new Act Regulations; Conforming Amendments Sae Pa" 2 Statements of Consideration 9-SC-2

PART 9

• STATEMENTS OF CONSIDERATION

. 53 FR 17688 Because these are amendments (PDR) at its headquarters at 2120 L Published 5/18/88 dealing with agency practice and Street NW., Lower Level, Washington, Effective 5/18/88 procedure, the notice and comment DC. The PDR contains an extensive provisions of the Administrative collection of publicly available technical Minor Corrective Amendments Procedure Act do not apply pursuant to and administrative records that the NRG See Part 2 Statements of Consideration 5 U.S.C. 553(b)(AJ. The amendments are receives or generates. Requests by the effective upon publication in the Federal public for the duplication of records at* 53 FR 43419 Register. Good cause exists to dispense the PDR have traditionally been Published 10/27/88 with the usual 30.day delay In the *. accommodated by a duplicating service Effective 10/27/88 effective date, because these contractor selected by the NRC. The amendments are of a minor and schedule of duplication charges to the Relocation of NRC's Public Document administrative nature, dealing with the public established in the duplicating Room; Other Minor NofTlenclature agency's reorganization. service contract is set forth in 10 CFR Changes ,. 9.35 of the Commission's regulations*. Environmental Impact: Categorical The NRC has recently awarded.a new

• See P11rt 1 Statements of ConslderaUon E.1'clusion duplicating service contract. The revised

. 53FR52993                                          The NRC had determined that this           fee acnedule reflects the changes in .

Published 12/30/88 final rule is the type of action described 'copying charges to *the public that have Effective 12/30/88 in categorical exclusion 10 CFR resulted from the awarding of the new 51.22(c)(2). TherefOl'e, neither an contract for the duplication ofrecords at Reorganization of Functions Within envJronmental Impact statement nor an thePDR. the Office of Administration and environmental assesamerit has been Because this is an.amendment dealing Resources Management and Minor prepared for this final rule. with agency practice and procedures, Corrective Amendments Papenvork Reduction Act Statement the notice provisions of the See Part 1 Statemlfnts of ConslderaUon Administrative Procedures Act do not Thia final rule contains no information apply pursuant to 5 U.S.C. 553(b)(A), In

. '54 FR 10138                                    collection requirements and therefore Is       addition, the PDR users were notified on Published 3/10/89                              not subject to the requirements of the         June 30, 1989, that the new contract was Effective 3/10/89                              Paperwork Reduction Act of19BO (44             being awarded and that the ne.w prices 10CFRPartl                                      U.S.C. 3501 et seq.).                         would go into effect on July 10, 1989. The IJst of Subjects in 10 CFR Part 9              amendment is effective upon publication .

Freedom of Information Act; Appeal in the Federal Register. Good cause *. . Authority for Deputy Executive Freedom of Information, Penalty, exists to dispense the*usual SO.day Director Privacy, Reportins and recordkeeping delay in the effective date because the requirements. amendment la of a minor and

• AGENCY: Nuclear Regulatory For the reasons set out ln the administrative nature dealing with Commission. preamble and und.er the authority -of the agency procedures.

ACTION: Fi1,1al rule. Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, Environmental Impact: Ca~gorical

SUMMARY

The Nuclear Regulatory as amended. and 5 U.S.C. 553, the NRC *Exclusion

• Commission is amending its regulaUo~a is adopting the following amendments to The NRC has determined tha:t this to reflect the recent reorganization 10 CFR Part 9. . final rule is the type of.action described within the Office of the Executive* in categorical e~cl~sion 10 CFR Director for Operations. Thia * -54 FR 36757 51.22(c){1). -

amendment will permit a Deputy Published 9/5/89 Therefore, neither an environmental Executive Director to respond to appeals Effective 9/5/89 impact statement nor:an environmental in lieu of the Executive Director for . assessment has been pr~pared for this 10CFR Part9 Operations. final rule. . . . .. EFFECTIVE DATE: March 10, 1989. RIN 3150-AD29 Paperwork Reduction Act Statement FOR FURTHER INFORMATION CONTACT: Duplication Fees . Donnie H. Grimsley, Director, Division This final rule does not contain a new of Freedom of Information and

• AGENCY: Nuclear Regulatory or amended information**collection
• Publications Services, Office of Com.mission. requirement subject to the Paperwork Administration, U.S. Nuclear Regulatory ACTION: Final rule.

Reduction Act of 1980 (44 U.S.C. 3501 et Commission. Washington, DC 20555.-,,

• seq.). Existing requirements were

SUMMARY

The Nuclear Regulatory approved by the Office of Management Telephone: (301) 492-7211, Commission (NRC) is amending Its -. and Budget approval number 315o--0043.

SUPPLEMENTARY INFORMATION: On regulations by revising the charges for January 9, 1989. the Nuclear Regulatory .* Backlit Analysis. copying records publicly available at the Commission (NRC) announced . NRC Public Document Room in This final rule pertains solely to minor organizational changes within the Offi~e Washington, DC. The amendment is administrative procedures of the NRC:

   .of the Executive Director- for Operations.      necessary in order to reflect .the change      therafore, no backfit analysis has been In the reorganization, th~; Commls~ioii :: . in copying charges resulting from the          prepared.

appointed a second Deputy Bxecu_tive Commission's award of a new contract List of Subjects in 10 CFR Part 9 Director and assigned specific are~a of* for the copying of records. responsibility "to the tw~ deputies:11oth Freedom of information, Penalty, "EFFECTIVE DATE: September 5, 1989. Deputy Executive Directors report to the Privacy, Reporting and recordkeeping Executive Director for Operations. The FOR FURTHER INFORMATION CONTACT: requirements, Sunshine Act. NRC is amending portions of its Kathle!!n R. Ruhlman, Public Document For the reasons set out in the regulationl! to specify that in lieu of ihe Room Rn.inch, Office of the Secretary, preamble and*under the authority of the Executive Director for Operations, a U.S. Nuclear Regulatory Commission, Atomic Energy Act of 1954, as amended, Deputy Executive Director is authorized Washington, DC 20555, telephone 202- the Energy Reorganization Act of 1974, to respond to an appeal of a denial of a 634-3366. ------*. _. . .. as amended, and 5 U.S.C. 552 and 553, Freedom of Information Act request. S-UPPLEPAl:NTARY INFORMATION: The NRC the NRC is adopting the following maintains a Public Dociµnent Room 11~en~ent to*10 CFR p11rt 9. 9-SC.3

PART 9 STATEMENTS OF CONSIDERATION 54 FR53312 The NRC is amending.portions of its 56FR32070 Published 12/28/89. regulations to reflect this action. The Published 7/15/91 Effective 12/28/89 amended provisions specify that the Effective 7/15/91 Assistant Inspector General for Audils, Statement of Organization and General or the Assistant Inspector General for 10 CFR Pant 9 Information; Minar Amendments Investigations wilt be the initial denying official when responding to Freedom of Duplication Fees See Pan 1 Statements of Consideration Information or Privacy Act requests, and 55 FR33645 that the Inspector General is authorized AGENCY: Nuclear Regulatory Published 8/17/90 to respond to an appeal of a denial of a Commission. Effective 8/17/90 Freedom of Information or Privacy Act ACTION: Final rule. request or an appeal to amend or coll'ecl 10CFR Part I a record denied in response. to a. Privacy

SUMMARY

The Nuclear Regulatory Act requesL These amendments also Commission (NRC) is amending its RIN 3150-AD45 require personnel in. the Office of the regulations by revising the charges for Inspector General to obtain. the copying records publicly available at the Fraedom of Information Act, Privacy Inspector General's approval, instead of NRC Public Document Room in Act, Production or Disclosure In the General Counsel's approval', before Washington, DC. The amendment is Response To Subpeona or Demands responding to a subpeona, order, or necessary in order to reflect the change or Courts or Other Authorities; Office other demand for the production of in copying charges resulting from the of the Inspector Gen~ral records or. disclosure oi' infonna lion, Commission's award of a new contract AGENCY: Nuclear Regulatory including* testimony, thas is. issued by a for the copying of records.

Commission. court or other*judia:ial or quasi-judicial EFFECTIVE DATE: July 15, 1991. authority. ACTION: Final rule. Becaus,e these are amendments FOR FURTHER INFORMATION CONTACT: dealing with agency practice and Michelle Schroll, Public Document Room

SUMMARY

The Nuclear Regulatory procedures, the notice and commenl Branch, Office of the Secretary, U.S.

Commission*(NRC) ia amending its Nuclear Regulatory Commission, regulations to reflect the establishment provisions. of the* Administrative Procedure Act do not apply pursuant to Washington, DC 20555, telephone 202-of the Office of the Inspector General. 5 U .S.C. 553(b)(A}. The amendments are 634-3366. This amendment will permit the Office of the Inspector General to make .effective upon publication in the Federali SUPPLEMENTARY INFORMATION: The NRC independent disclosure determinations Register fAugusl 11, 1990), Good cause maintains a Public Document Room on (1) records originating in its office exists to dispense with the usual 30-day (PDR) at its headquarters at 2120 L that are responsive to Freedom of delay in the effective date because these Street, NW., Lower Level, Washington, . Information Act requests, and (2) amendmentll' are* of a minor and DC. The PDR contains an extensive records located in its office that are administrative., nature: dealing with collection of publicly available technical responsive to Privacy Act requests. The agency organization. and administrative records that the NRC final rule also requires personnel in the receives or generates. Requests by the Environmental Impact: Categorical public for the duplication of records at Office of Inspector General to obtain the Exclusion Inspector General's approval, instead of the PDR have traditionally been the General Counsel's approval, before The NRC has determined that this accommodated by a duplicating service responding to subpoenas ordemaRd9' or final rule is the type of action described contractor selected by the NRC. The r:ourls or other authorities for the in categorical exclusion 10 CFR schedule of duplication charges to the production or disclosure of NRC 51.22(c)(1) ..Therefore, neither an public established in the duplicating information. environmental impact statement nor an service contract is set forth in 10 CFR EFFECTIVl; DATE: August 17, 1990. environmenta-t assessment bes been 9.35 of the Commission's regulations. FOR FURTHER INFORMATION CONTACT: prepa,ed for this. imal rule. The NRC has recently awarded a new Donnie H. Grimsley, Director. Division duplicating service contract. The revised Papeiwork.Reducfion.Act Slafemenl fee scheduled reflects the changes in of Freedom of Information. and This final rule dbes nm contain a 11&w Publications Services, Office of copying charges to the public that have or amended. information. collecUen resulted from the awarding of the new Administration, U.S. Nu&leBl' Regulatory requirement subject to, the. Paper.work Commission, Washington, DC 20555, contract for the duplication of records at telephone, (301!} 492-721:1. Reduction Act. of 1980 (44. U.S.C. 3501. el the PDR. seq.). Exisq requirements were Because this is an amendment dealing SUPPLEMENTARY INFORMA1'ION:-0n April approved by the Office of Management 17, 1989, in accordance with Public Law with agency practice and procedures, and Budget approval number 3150-0043. the notice provisions of the 100-504, the Nuclear Regulatory Commission established the Office of ~st of Subjects in lo en hd:9 Administrative Procedures Act do not the Inspector General and abolished the apply pursuant to 5 U.S.C. 553(b)[A). In Freedom oflnfonnation, Penalty, addition, the PDR users were notified on Offire of lnspecto,* and Audilor. In the Privacy, Reporting and recordkeeping reorganization, the Assistant Inspector June 27, 1991, that the new contract was requirements, Sunsfline Acl; being awarded and that the new prices General* for Audits and the Assistant Inspector General' for Investigations For the reasons set out in the would go into effect on July 10, 1991. The were designated as the initial decidins preamble. and under the authority of the amendment is effect_ive upon publication officials,for audit related records and Atomic Energy Act of 1954; as amended, investigatio111 related records the Energy Reorganization Act of 1974. respectively when responding* to as amended. and* 5' U'.S.C. 55Z and 553, Freedom of Information or Privacy Act the NRC* is adopting the foI1owing requests. The Inspector General'. was amendments* to 10* CFR part 9. designated as the official responsible for

• making final determinations on.appeals from denials of records or denials of correction of records.

9-SC-4

PART 9

• STATEMENTS OF CONSIDERATION in the Federal Register. Good cause FDA FU"THEA INFORMATION CONTACT: contractor selected by the NRC. The exists lo dispense the usual 30-day Michael T. Lesar, Chief, Rules Review schedule of duplication charges to the delay in the effective date because the Section, ReRulatory Publications Branch, public established in the duplicating amendment is of a minor and Division of 1-'rP.edom of Information and service contract is set forth in 10 CFR administrative nature dealing with Publications Services, Office of 9.35 of the Commission's regulations.

agency procedures. Administration, U.S. Nuclear ReRulatory The NRC has recently awarded a new Comm:ssion, Washington, DC 20555, duplicating service contract. The Environmental Impact: Categorical Exclusion Telepnone: 301-492-7758.. revised fee schedule reflects the changes SUPPLEMENTARY INFORMATION: In the in copying charges to the public that The NRC has determined that this July 15, 1991, edition of the Federal

• have resulted from the awarding of the final rule is the type of action described Re~ster, in the left-hand column of page new contract for the duplication of in categorical exclusion 10 CFR 32071. amendatory instruction number 2 records at the PDR.

51.22( c)(l). is corrected to read as follows: Because this is an amendment dealing Therefore, neither an environmental 2. ln § 9.35, paragraphs (a)(l) end with agency practice and procedure, the impact statement nor an environmental (a}(Z) are revised to read as follows: notice provisions of the Administrative assessment has been prepared for this Dated at Bethesda, Maryland, this 23rd day Procedure Act do not apply pursuant to final rule. of December 1991. 5 U.S.C. 553(b)(A). In addition, the PDR For the Nuciear Regulatory Commission. users were notified on July 2, 1993, that Paperwork Reduction Act Statement the new contract was being awarded This final rule does not contain a new John D. Phillipa, and that the new prices would go into or amended information collection Acting Director, Division ofFreedom of Information and Publications Services, O,'fice effect on July 13, 1993. The amendment requirement subject to the Paperwork is effective upon publication in the o{1dministration. Reduction Act of1980 [44 U.S.C. 3501 et Federal Register. Good cause exists to seq.). Existing requirements were dispense the usual 30-day delay in the approved by the Office of Management effective date because the amendment is and Budget approval number 3150-0043. of a minor and administrative nature dealing with agency procedures. Backlit Analysis 58FR38665 Environmental Impact: Categorical This final rule pertains solely to minor Published 7/20/93 Exclusion

• administrative procedures of the NRC; Effective 7/20/93 therefore, no backlit analysis has been The NRC has determined that this .

prepared. final rule is the .type of action described 10CFRPart9 in categorical excfusion 10 CFR List of Subjects in 10 CFR Part 9 51.22(c)(1), Therefore, neither an Freedom of information. Penalty, RIN 3150-AE79 environmental impact statement nor an Privacy, Reporting and recordkeeping environmental assessment has been requirements, Sunshine Acl Duplication Fees prepared for this final rule.

• For the reasons out in the preamble AGENCY: Nuclear Regulatory Paperwork Reduction Act Statement and under the authority of the Atomic Commission.

This final rule does not contain a new Energy Act of 1954, as amended, the ACTION: Final rule. or amended information collection Energy Reorganization Act 1974, as requirement subject to the Paperwork

SUMMARY

The Nuclear Regulatory amended. and 5 U.S.C. 552 and 553. the Reduction Act of1980 (44 U.S.C. 3501 NRC is adopting the following Commission (NRC) is amending its regulations by revising the charges for et seq.). Existing requirements were amendment to 10 CFR part 9. approved by the Office of Management copying*records publicly available at the NRC Public Document Room in and Budget approval number 3150--

0043. . 56 FR67152 Washington, DC. The amendment is Published 12/30/91 nece!lsary to reflect the change in Regulatory Analysis Effective 7/15/91 copying charges resulting from the The Nuclear Regulatory Commission Commission's award i>f a new contract is amending its regulations governing for the copying ofrecords. the rates charged for copying records at 10CfRPart9 EFFECTIVE DATE: July 20, 1993. the NRC Public Document Room due to FOR FURTHER INFORMATION CONTACT: the signing of a new contract for the . RIN 3150-AD29 Thomas E. Smith, Public Document copying of records. This rule has no Dupllcatlon -Fees Room Branch, Office of the Secretary, significant impact on health, safety or U.S. Nuclear Regulatory Commission, the environment There is no substantial AGENCY: Nuclear Regulatory Washington, DC 20555, telephone 202- cost to licensees, the NRC or other Commission. 634-3366. Federal agencies. ACTIGN: Final nile; correction. SUPPLEMENTARY INFORMATION: The NRC Backfit Analysis . maintains a Public Document Room SUMMMV: This document corrects -a (PDR) at 2120 L Street NW. (Lower The NRC bas determined that the final rule published *on July 15.1991 (56 Level), Washington, DC. The PDR Backfit Rule, 10 CFR 50.109, does not FR 32070), that revises the charges fo'r' contains an extensive collection of apply to this final rule and that a backfit copying records publicly available at the publicly available technical and analysis is not required for this final NRC.: Public Document Room in administrative records that the NRC rule, beciluse these amendments of Washington. DC. The action is receives or generates. Requests by the regulations do not.involve any necessary to correct an amendatory public for the duplication of records at provisions which would impose backfits instruction. the PDR have traditionally been as defined in 10 CFR 50.109 (a)(l). EFFECTIVE DATI!: July 15, 1991. accommodated by a duplicating service 9-SC-5

PART 9

• STATEMENTS OF CONSIDERATION List of Subjects in 10 CFllPart 9 SUPPLEMENTARY INFORMATION: would substantially compromise the effectiveness of OIG investigations.

Criminal penalties, Freedom of Background Knowledge of these investigations could Information, Privacy, Reporting and On July 26, 1995 (60 FR 38282), the enable suspects to prevent detection of recordkeeping requirements, Sunshine NRC published a proposed rule in the criminal activities, conceal or destroy Act. Federal Register that would amend evidence, or escape prosecution. For the reasons set out in the -NRC's Privacy Act regulations contained Disclosure of this information could preamble and under the authority of the in 10 CFR part 9, subpart B. The lead to the intimidation of, or harm to, Atomic Energy Act of 1954, as amended, proposed amendments would add informants md witnesses, and their the Energy Reorganization Act of 1974, subsections (1)(2) and (k)(S) exemptions as amended, and 5 U.S.C. 552 and 553, families, and could jeopardize the safety to Privacy Act System of Records NRC- and well-being of investigative and the NRC is adopting the following 18, "Office of the Inspector General amendment to 10 CFR part 9, related pers10DD.el, and their families. (OIG) Investigative Records-NRC, and The imposition of certain restrictions on update the list of exemptions that apply the way investigative information is to speci.6c NRC systems of records. On collected, verified, or retained would July 26, 1995 (60 FR 38379), the NRC significantly impede the effectiveness of published revisions to NRC-18 that OIG investigatory activities and could would, among other things, add preclude the apprehension and subsections (1)(2) and (k)(5) exemptions successful prosecution of persons and two new routine uses, revise engaged in fraud or criminal activity. 6DFR63897 existing routine uses, and pennit The exemption is needed to maintain Published 12/13/95 disclosures to consumer reporting the integrity and confidentiality of Effective 1/12/96 agencies. The public was provided 40 criminal investigations, to protect days in which to comment on the two individuals from harm, and for the 10CFR Part9 notices. No comments have been following specific reasons: RIN 3150-AD83 received. In addition, as required by 5 (1) 5 U.S.C. 552a(c)(3) requires an U.S.C. 552a(r) and Office of agency to make the accounting of each Revision of Specific Exemptions Under Management and Budget (0MB) disclosure of records available to the the Privacy Act Circular No. A-130, a report on the individual named in the record at the

                  ---                         proposed revisions to the system of         individual's request. These accountings AGENCY: Nuclear Regulatory                   records and 10 CFR Part 9 was sent to       must state the date, nature, and purpose Commission.                                  the Committee on Government Refonn          of each disclosure of a record and the ACTION: Final rule.                          and Oversight, U.S. House of                name and address of the recipient.

Representatives, the Committee on Accounting fo.r each disclosure would

SUMMARY

The Nuclear Regulatory Governmental Affairs, U.S. Senate, and alert the subjects of an investigation to Commission (NRC) is amending its 0MB. the existence of the investigation and regulations to add exemptions Under subsection (j)(2) of the Privacy that they are subjects of the authorized by subsections (1)(2) and Act, the head of an agency may issue investigation. The release of this

• (k)(S) of the Privacy Act of 1974, es rules to exempt any system of records information to the subjects of an amended (Privacy Act), to those within that agency from certain investisation would provide them with currently in place for System of Records
• provisions of the Privacy Act if the significant information concerning the NRC-18, "Office of the Inspector system is maintained by an agency nature of the investigation and could General (OIG) Investigative Records- component whose principal function seriously impede or compromise the NRC, under subsections (k)(1), (k)(2), pertains to the enforcement of criminal investigation, endanger the physical and (k)(6). The additional exemptions
• laws and if the system of records safety of confidential sources, witnesses, for NRC-18 are necessary to maintain consists of information compiled for a law enforcement personnel, and their the integrity and confidentiality of these criminal law enforcement purpose. families, and lead to the improper records, to protect the privacy of third NRC-18 is maintained by the OIG, a influencing of witnesses, the destruction parties, and to avoid interference with . component of NRC which performs, as of evidence, or the fabrication of law enforcement activities. The final one of its principal functions, testimony.

rule also updates the list of exemptions investigations into violations of criminal (2) 5 U.S.C. 552a(c)(4) requires an that apply to specific NRC systems of law in connection with NRC's programs agency to inform outside parties of records and is necessary to eliminate and operations in accordance with the correction of and notation of disputes any confusion regarding the Inspector General Act of 1978, as about information in a system in exemption(s) applicable to each system. amended, and contains criminal law accordance with subsection (d) of the EFFECTIVE DATE:January 12, 1996. enforcement information. Therefore, Privacy Act. Because this system of FOR FURTHER INFORMATION CONTACT: Jona pursuant to subsection (j)(2), NRC-18 is records is being exempted from L. Souder, Privacy Act Program exempt from all provisions of the subsection (d) concerning access to Manager, Freedom of Infonnation/Local Privacy Act except subsections (b), (c)(l) records, this section is inapplicable to Public Document Room Branch, and (2), (e)(4)(A) through (F), (e)(6), the extent that the system of records Division of Freedom of Information and (e)(7), (e)(9), (e)(lO), (e)(11), and (i). will be exempted from subsection (d) of Publications Services, Office of The disclosure of information the *Privacy Act. Administration, U.S. Nuclear Regulatory contained in NRC-18, including the (3) 5 U.S.C. 552a(d) and (f) require an Commission, Washington, DC 20555- names of persons or agencies to whom agency to provide access to records, 0001, Telephone: 301-415-7170. the information has been transmitted, make corrections and amendments to 9-SC-6

PART 9

• STATEMENTS OF CONSIDERATION records, and notify individuals of the be authorized to use their professional Because this system of records is being existence of records upon their request. judgment as to the appropriate sources exempted from subsections (d) and (f) of Providing individuals with access to and timing of an investigation. It is often the Privacy Act concerning access to records of an investigation, the right to necessary to conduct an investigation so records and agency rules, respectively, contest the contents of those records, the target does not suspect that he or she these requirements are inapplicable to and the opportunity to force changes to
• is being investigated. The requirement the extent that the system of records be made to the information in those to obtain the information from the will be exempted from these records would seriously interfere with targeted individual may put the suspect requirements. However, OIG has and thwart the orderly and unbiased on notice of the investigation and thwart published some information concerning conduct of the investigation and impede the investigation by enabling the its notification, access, and contest case preparation. Permitting the access suspect to destroy evidence and take procedures. Under certain normally afforded under the Privacy Act other action that would impede the circumstances, OIG could decide it is would provide the subject*with valuable investigation. This requirement may appropriate for an individual to have information that would allow also prevent an OIG investigator from access to all or a portion of his or her interference with or compromise of gathering information and evidence records in the system.

witnesses or render witnesses reluctant before interviewing an investigative (8) 5 U.S.C. 552a(e)(4)(I) requires an to cooperate with investigators; lead to target to maximize the value of the agency to publish notice of the suppression, alteration, fabrication, or interview by confronting the target with categories of sources of records in the destruction of evidence; endanger the the evidence or information. In certain system of records. To the extent that this physical safety of confidential sources, circumstances, the subject of an provision is construed to require more witnesses, law enforcement personnel, investigation cannot be required to detailed disclosure than the broad, and their families; and result in the provide information to investigators and generic information currently published secreting of or other disposition of information must be collected from in the system notice, an exemption from assets that would make them difficult or other sources. It is often necessary to this provision is necessary to protect the impossible to reach to satisfy any collect information from sources other confidentiality of sources of Government claims growing out of the than the subject of the investigation to information, to protect privacy and investigation. verify the accuracy of the evidence physicaI safety of witnesses and (4) 5 U.S.C. 552a(e)(l) requires an collected. informants, and to avoid the disclosure agency to maintain in agency records In addition, the statutory term "to the

• of investigative techniques and only "relevant and necessary" greatest extent practicable" is a procedures. OIG will continue to information about an individual. This subjective standard. It is impossible to publish such a notice in broad generic provision is inappropriate for define the term adequately so that terms as is its current _practice.

investigations because it is not always individual OIG investigators can (9) 5 U.S.C. 552a(e){S) requires an possible to detect the relevance or consistently apply it to the many fact agency to maintatn its records with such necessity of each piece of information in patterns present in OIG investigations. accuracy, relevance, timeliness, and the early stages of an investigation. In (6) 5 U.S.C. 552a(e)(3) requires an completeness as is reasonably necessary some cases, it is only after the

• agency to inform each person whom it to ensure fairness to the individual in information is evaluated in light of-other asks to supply information on a form making any determination about the evidence that its relevance and that can be retained by the person of the individual. Much the same rationale is necessity will be clear. In other cases, authority under which the information applicable to this exemption as that set what may appear to be a relevant and is sought and whether disclosure is out previously in item (4) (duty to necessary piece of information may mandatory or voluntary, of the principal maintain in agency records only become irrelevant in light of further purposes for which the information is "relevant and necessary" information investigation. intended to be used, of the routine uses about an individual). Although the OIG In addition, during the course of an that may be made of the information, makes every effort to maintain records investigation, the investigator may and of the effects on the person, if any, that are accurate, relevant, timely, and obtain information that relates primarily of not providing all or some part of the complete, it is not always possible in an to matters under the investigative requested information. The application investigation to determine with jurisdiction of another agency, and that of this provision could provide the certainty that all of the infonnation information may not be reasonably subject of an investigation with collected is accurate, relevant, timely, segregated. In the interest of effective substantial information about the nature and complete. During a thorough law enforcement, OIG investigators of that investigation that could interfere investigation, a trained investigator should retain this information because it with the investigation. Moreover, would be expected to collect allegations, can aid in establishing patterns of providing such a notice to the subject of conflicting information, and information criminal activity and can provide an investigation could seriously impede that ~ay not be based upon the personal valuable leads for Federal and other law or compromise an undercover knowledge of the provider. When OIG enforcement agencies. investigation by revealing its existence decides to refer the matter to a

[5) 5 U.S.C. 552a(e)(2) requires an and could endanger the physical safety prosecutive agency, for example, that agency to collect information to the of confidential sources, witnesses, information would be in the system of greatest extent practicable directly from investigators, and their families, by records and it may not be possible to the subject individual, when the revealing their identities. determine the accuracy, relevance, and information may result in adverse (7) 5 U.S.C. 552a(e)(4)(G) and (H) completeness of some information until determinations about an individual's require an agency to publish a Federal further investigation is conducted, or rights, benefits, and privileges under Register notice concerning its indeed in many cases until after a trial Federal programs. The general rule that procedures for notifying an individual (if at all). This requirement would information be collected "to the greatest at his or her request, if the system of inhibit the ability of trained extent practicable" from the target . records contains a record pertaining to investigators to exercise professional individual is not appropriate in him or her, how to gain access to such judgment in conducting a thorough investigations. OIG investigators should a record, and how to contest its content. investigation. Moreover, fairness to 9-SC-7

PART 9

• STATEMENTS OF CONSIDERATION affected individuals is ensured by the reveal the identity of a source who necessity of each piece of information in due process they are accorded in any furnished information to the the early stages of an investigation. In trial or other proceeding resulting from Government under an express promise some cases, it is only after the the OIG investigations. that the identity of the source would be information is evaluated in light of other (10) 5 U.S.C. 552a(e)(8) requires that held in confidence, or, prior to the evidence that its relevance and an agency make reasonable efforts to effective date of this section, under an necessity will be clear.

serve notice on an individual when any implied promise that the identity of the (4) Because NRC-18 is being record on the individual is made source would be held in confidence. exempted from the underlying duties to available to any person under NRC-18 contains information of the provide notification about and access to compulsory legal process when such type described above. Therefore, in information in the system and to make process becomes a matter of public accordance with subsection (k)(5), NRC- amendments to and corrections of the record. Exemption from this 18 is exempt from subsections (c)(3), (d), information under subsections (d) and requirement is needed to avoid (e)(1), (e)(4)(G), (HJ, and (I), and CO of (f) of the Privacy Act, the requirements revealing investigative techniques and the Privacy Act to honor promises of of 5 U.5.C; 552a(e)(4) (G) and (H) are procedures outlined in those records confidentiality should the data subject inapplicable. and to avoid prematurely revealing an request access to or amendment of the (5) 5 U.S.C. 552a(e)(4)(I) requires w1 ongoing criminal investigation to the records, or access to the accounting of agency to publish notice of the subject of the investigation. disclosure of the records for the categories of sources of records in the (11) 5 U.S.C. 552a(g) provides for civil following reasons: system of records. To the extent that this remedies if any agency fails to comply (1) 5 U.S.C. 552a(c)(3) requires an provision is 1 *onstrued to require more with the requirements concerning agency to grant access to the accounting detailed disclosure than the broad, access to records under subsections of disclosures including the date, generic information currently published (d)(1) and (3) of the Privacy Act, nature, and purpose of each disclosure, in the system notice, an exemption from maintenance of records under and the identity of the recipient. The this provision is necessary to protect the subsection (e)(5) of the Privacy Act. and release of this information to the record confidentiality of sources of information any other provision of the Privacy Act, subject could alert them to the existence and to protect the privacy and physical or any rule issued thereunder, in such of the investigation or prosecutive safety of witnesses and informants. a way as to have an adverse effect on an interest by NRC or other agencies. This However, the OIG will continue to individual. Allowing civil lawsuits for could seriously compromise case publish such a notice in broad generic alleged Privacy Act violations by OIG preparation by prematurely revealing terms as is its current practice. investigators would compromise OIG the existence and nature of the In addition, 10 CFR 9.95 is being investigations by subjecting the investigation; compromise or interfere amended to update the list of sensitive and confidential information with witnesses, or make witnesses exemptions that apply to specific in the OIG system of records to the reluctant to cooperate; and could lead to systems of records. The list includes possibility of inappropriate disclosure suppression, alteration, or destruction of NRC-23, "Office oflnvestigations under the liberal civil discovery rules. evidence. Indices, Files, and Associated Records-That discovery may reveal confidential (2) 5 U.S.C. 552a(d) and (f) require an NRC," end NRC-35, "Drug Testing sources, the identity of informants, and agency to provide access to records, Program Records-NRC," for which investigative procedures and make corrections and amendments to corresponding Part 9 amendments were techniques, to the detriment of the records, and notify indivic;l.uals of the not previously prepared when each new particular criminal investigation as well existence of records upon their request. system was established. NRC-40 hes as other investigations conducted by Providing individuals with access to been deleted from this list because e OIG. records of an investigation, the right to review of the system revealed that the The pendency of such a suit would contest the contents of those records, subsections (k)(5) and (k)(6) exemptions have a chilling effect on investigations, and the opportunity to force changes to of the Privacy Act were no longer given the possibility of discovery of the be made to the information in the needed. This amendment will eliminate contents of the investigative case file. A records would seriously interfere with any confusion regarding the specific Privacy Act lawsuit conld become a and thwart the orderly and unbiased exemption(s) applicable to each system strategic weapon used to impede OIG conduct of the investigation and impede of records. investigations. Because the system case preparation. Providing access rights would be exempt from many of the normally afforded under the Privacy Act EnvironmenRal Impact-Categorical Privacy Act's requirements, it is would provide the subject with valuable Exclu!lion unnecessary and contradictory to information that would allow The NRC has determined that this provide for civil remedies from interference with or compromise of rule is the type of action described in violations of those specific provisions. witnesses or render witnesses reluctant categorical exclusion 10 CFR Under subsection (k)(5) oT the Privacy to cooperate; lead to suppression, 51.22(c)(1). Therefore, neither an Act, the head of an agency may, by rule, alteration, or destruction of evidence; environmental impact statement nor an exempt any system of records within the and result in the secreting of or other environmental assessment has been agency from certain provisions of the disposition of assets that would make prepared for this final rule. Privacy Act if the system of records them difficult or impossible to reach to contains investigatory material satisfy any Government claims growing Paperwork Reduction Act Statement compiled solely for the purpose of out of the investigation or proceeding. This final rule does not contain a new determining suitability, eligibility. or (3) 5 U.S.C. 552a(e)(1) requires or amended information collection qualifications for Federal civilian agencies to maintain only "relevant and requirement subject to the Paperwork employment, military service, Federal necessary" information about an Reduction Act of1995 (44 U.S.C. 3501 contracts, or access to classified individual in agency records. This et seq.). Existing requirements were information. However, thes*e records provision is inappropriate for approved by the Office of Management would be exempt only to the extent that investigations because it is not always and Budget, approval number 315~ the disclosure of this material would possible to detect the relevance or 0043. 9-SC-8

PART 9

• STATEMENTS OF CONSIDERATION Regulatory Analysis Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, This final rule adds exemption (j)(2) *as amended; and 5 U.S.C. 552 and 553, of the Privacy Act to the NRC the NRC is adopting the following regulations that describe exempt amendments to 10 CFR part 9.

systems of records. This is en administrative regulatory action that would make NRC's regulations consistent with the regulations applicable to the majority of statutorily appointed Inspectors General. The rule also adds the (j)(2) and (k)(S) exemptions to the system of records maintained by OIG and clearly links each NRC system of records to the specific exemption(s) of the Privacy Act under which the system is exempt. The rule does not have an economic impact on any class of licensee or the NRC. By more clearly indicating the exemptions under which a system is exempt end by conforming NRC's regulations to those of the majority of statutorily appointed Inspectors General, the rule may provide some benefit to those who may be required to use these regulations. The alternative to the rule would be to refrain from adopting the identified exemptions. As discussed in this document, failure to adopt the rule could have detrimental effects on the OIG's investigative program and its ability to obtain end protect information. This constitutes the regulatory analysis for this final rule. Regulatory Flexibility Certification As required by the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Commission certifies that this final rule does not have a significant economic impact on a substantial number of small entities. The amendments to 10 CFR part 9 ere procedural in nature and will aid an NRC office to perform its criminal law enforcement functions. In addition, the amendments will eliminate any confusion regarding specific exemptions available to each affected Privacy Act system of records notice. Backfit Analysis The NRC has determined that the backlit rule 10 CFR 50.109 does not apply to this final rule and, therefore, a backlit analysis is not required because these amendments do not involve any provisions that would impose backfits as defined in 10 CFR 50.109(a)(1). List of Subjects in 10 CFR. Part 9 Criminal penalties, Freedom of information, Privacy, Reporting and . recordkeeping requirements, Sunshine Act. For the reasons set out in the preamble end under the authority of the 9-SC-9

UNITED STATES NUCLEAR REGULATORY COMMISSION RULES and REGULATIONS TITLE 10, CHAPTER 1, CODE OF FEDERAL REGULATIONS-ENERGY CRITERIA AND PROCEDURES FOR DETERMINING

 ~                                    ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION
 ~                                             OR AN EMPLOYMENT CLEARANCE STATEMENTS OF CONSIDERATION 52 FR 31601                                     In the reorganization, the Commission Published 8/21/87                               appointed a second Deputy Executive Effective 8/19/87 Director end assigned specific areas of Statement of Organization and General           responsibility to the two deputies. Both Information                                     Deputy Executive Directors report to the Executive Director for Operations. The See Part 1 Statements o! Consider11tion         NRC is emending portions of its 54 FRS3312 regulations to specify that in lieu of the Published 12/28/89.                             Executive Director for Operations, a Effective 12/28/89                              Deputy Executive Director is authorized to suspend en individual's access Statement of Organization and General           authorization and/or employment Information; Minor Amendments                    clearance.

Because these are amendments See Part 1 Statements of ConslderaUon dealing with agency practice end SSFR4 procedures, the notice end comment Published 1/2/90. provisions of the Administrative Effective 1/2/90 Procedure Act do not apply pursuant to 5 U.S.C. 553(bl(AJ. The amendments are 10 CFR Part 10 effective upon publication in the Federal Register. Good cause exists to dispense . RIN 31SO-AD42 with the usual 30-dey delay in the Suspension of Access Authorization effective date, because these and/or Employment Clearance: amendments ere of e minor end Delegation of Authority to Deputy administrative nature, dealing with Executive Directors agency organization. AGENCY: Nuclear Regulatory Environmental Impact: Categorical Exclusion Commission. ACTION: Final rule. The NRC has determined that this final rule Is the type of action described

SUMMARY

The Nuclear Regulatory in 10 CFR 51.22[c)(2). Therefore, neither Commission is amending its regulations an environmental impact statement nor to permit a Deputy Executive Diractor to an environmental assessment hes been suspend an individual's access prepared for this final rule.

authorization and/or employment clearance. This amendment will provide Paperwork Reduction Act Statement greater flexibility in responding to This final rule contains no information questions concerning the continued collection requirements end therefore is eligibility of en individual's access not subject to the requirements of the authorization and/or employment Paperwork Reduction Act of 1980 (44 clearance. U.S.C. 3501 et seq.). EFFECTIVE DATE: January 2, 1990. List of Subjects In 10 CFR Part 10 FOR FURTHER INFORMATION CONTACT: Administrative practice and Royal J. Voegele, Office of the General procedure, Classified information, Counsel, U.S. Nuclear Regulatory Government employees, Security Commission, Washington, DC 20555. measures. Telephone {301) 492-1562. SUPPLEMENTARY INFORMATION: On For the reasons set out in the January 9, 1989, the Nuclear Regulatory preamble end under the authority of the Commission (NRCJ announced Atomic Energy Act of 1954, as amended, organizational changes within the Office the Energy Reorganization Act of 1974, of the Executive Director for Operations. as amended, end 5 U.S.C. 553, the NRC is adopting the following amendmeii""ts"fo-- 10 CFR part 10. 10-SC-1

UNITED STATES NUCLEAR REGULATORY COMMISSION RULES and REGULATIONS TITLE 10, CHAPTER 1, CODE OF FEDERAL REGULATIONS-ENERGY

   /PARTl                 CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO OR CONTROL OVER
   ~                                   SPECIAL NUCLEAR MATERIAL STATEMENTS OF CONSIDERATION 5 U.S.C. 553(b)(A). The amendments ar11 52 FR 31601                                                                        effective 30 days after publication.

SUMMARY

The Nuclear Regulatory Publl1hed 1/21/87 Commission (NRC) is amending its Em,ironmental Impact: Categorical Effeetlvt 8/19/87 regulatio11s to change the forms required Exclusion to request an NRC personnel security Statement or Orpnlzadon and General clearance and/or mater.ia.l access The NRC has determined that this Information authorization for NRC licensee final regulation is the type of action*

described as a categcrical exclusion In S.. Part 1 Stattmtntl of Con1ldtr1tlon personnel, licensee contractors and 10 CPR 51.22(c)(2), Therefore, neither an other persons when *an Office of Personnel Manegement (OPM)

• environmental impact statement nor an 62 FR 44693
• background investigation is necessary. environmental assessment has been Published 11/20/87 The OPM has stipulated the use of the prepared for this final rule.

EfftctiVI 11 /20/87 SF-86, "Questionnaire for Sensifive Paperwork Reduction Act Statement Positions"' as *the ba*sls for their Access Authorization Fee Schedule for background investigations. Therefore. This final rule amends information Licensee Personnel NRC will discontinue use of the NRC collection requirements that are subject Form-1, "Personnel Security to the Paperwork Reduction Act of 1980 Ste Pert 26 Stat1m1nt1 of Consideration Questionnaire"; NRC Fonn-259, [44 U.S.C. 3501 et seq.). The 0MB "Auth01ity to Release Information for a clearance for NRC Form-1, "Personnel Security Clearance Investigation"; and Security Questionnaire" {3150--0048) is 63 FR 19240 SF-85A, "National Agency Check, Data being discontinued and replaced by the Publilhtd 6/27/88 for Nonsensitive or Noncritical-Sensitive SF-aa, "Questionnaire for Sensitive Effective 7/26/88 Position." These forms will be replaced Positions" which has been approvP.d by Retention Periods for Records by the SF-86. 0MB, number 32~7. EFFECTIVE DATE: September 15. 1988. Regulatory Analysis SI* Part 4 Stat1m1nt1 of Consideration FOR FURTHER INFORMATION CONTACT: Cynthia G. Harbaugh, Facilities Security The Commission has prepared a 63 FR 21979 and Operational Support Branch, regulatory amilysis on this final rule. Published 6/13/88 Division of Security, Office of The analysis examines the costs and Effactlv* 6/13/88 Administration and Resources benefits of the alternatives considered. ManagP.ment, U.S. Nuclear Regulatory The analysis is available for inspection . Access Authorization Fee Schedule for Commission, Washington, DC 20555, in the NRC Public Document Room. 1717 Licensee Personnel telephone (301) 492-4128. H Street NW., Washington, DC. Single SUPPLEMENTARY INFORMATION: l.i,;enSllll copies of the analysis may be obtained Sat Part 26 Statements of Con1ldtr1tion personnel, licensee contractors, and from Cynthia G. Harbaugh, Division of other persons who rr.quirc access lo Security. Oiiice uf Administration and classified information must be granled Resources M,magcment, U.S. Nudear an NRC pP.rsonnel security clr!arance. Regulalory Commission, Washington, Those requiring access to or control over DC 20fi55. telephone: (301) -i92-1128. special nuclear material must be granted List of Subjects an NRC material access authorization. 10 CFR Parl 11 As of September 16, 1988, the Office of Personnel Management (OPMJ will Hazardous materials--transportation, accept only the Standard Form [SF) 86. Investigations, Nuclear materials, which will serve as the basis.for the Reporting and recordkeeping investigations of all individuals* requirements, Security measures,

• • 53 FR 30829 requiring such clearances and/or Special nuclear material.

Published 8/16/88 authorizations. The NRC will 10 CFR Part 25 Effective 9/15/88 discontinue use of the NRC Form-1, "Personnel Security Questionnaire" and Classified information, Investigations. 10 CFR Parts 11 and 25 certain other related forms. Theillfore, Penalty, Reporting and recordkeeping current provisions of Pal'ts 11 and 25 requirements, Security measures. Implementation of the Use of SF-86, must be amended to reflect changes in For the reasons set out in the "Questionnaire for Sensitive form requirements. preamble and under the authority of the Positions" Atomic Energy Act of 1954, as amended, Because these amendments deal the Energy Reorganization Act of 1974, AGENCY: Nuclear Rr.gulatory solely wi.th agency practice and ss amended, and 5 U.S.C. 552 and 553, Commission. procedure, the notice and comment the NRC is adopting the following ACTION: Final rule. provisions of the Administrative amendments to 10 CFR Parts 11 and 25. Procedure Act do not aoply pursuant to 11-SC-1

PART 11 STATEMENTS OF CONSIDERATION .54 FR40859 individual's financial situation. Th*e processing fingerprint cards. Published 10/4/89 NRC, therefore, is amending its Specifically, the total fee for an NRC Effective 10/4/89 regulations to expand the present "R" special nuclear material access investigative scope for an "R" special authorization or "L" security clearance Access Authorization Fee Schedule for nuclear materials access authorization is increased from $15.00 to $40.00. Licensee Personnel and and "L" security clearance by adding a Implementation of the Standard Form Public Comments credit check. The addition of the credit check is On September 21, 1989, the proposed See Part 25 Proposed Rule Making rule was published for comment (54 FR necessary to achieve a higher degree of assurance that "R" and "L" licensee 38863). The comment period expired on 55 FR 11572 November 21, 1989. Four comments were Published 3/29/90. applicants are reliable, trustworthy, and do not have any significant financial received from the public. One comment, Effective 4/30/90 from a public interest law and policy problems which may cause them to be 10 CFR Parts 11, 25 and 95 susceptible to pressure, blackmail, or foundation, supported the addition of coercion to act contrary to the national credit checks to the investigations of RIN 3150-AD28 interest. In October 1987, OPM added individuals being considered for access Credit Checks-Expanded Personnel several significant financial questions to to classified information or special Security Investigative Coverage its SF-86, "Questionnaire For Sensitive nuclear materials. This commenter Positior:is," which the NRC currently believed that individuals with serious AGENCY: Nuclear Regulatory uses as a basis for its personnel security credit problems created a higher risk to Commission. investigations. OPM added these the security of such information and ACTION: Final rule. questions in order to identify security materials. related concerns and possible Two trade unions, whose members

SUMMARY

The Nuclear Regulatory work for nuclear power plants or are Commission is amending its regulations exploitable weaknesses in a person's employed by contractors at such plants, to (1) expand the i11vestigative scope for background. In view of recent espionage for inoney cases, it is important to and a private citizen, disagreed with the licensee "R" special nuclear material addition of a credit check to the access authorization and "L" security identify those individuals who have serious financial difficulties and are, investigations on the basis that it clearance applicants by adding a credit constituted an unwarranted invasion of check; and (2) revise the corresponding therefore, more susceptible to the privacy of workers at nuclear power fee schedules to recover the additional committing espionage or similar plants and was overly broad in its cost of each credit check and cost of activities against the United States. application to all workers at nuclear newly imposed Federal Bureau of Furthermore, the NRC has found, power stations. Additionally, it was Investigation (FBI) fees for processing based on actual case experience, that an stated that (1) There were no procedures fingerprint cards. This amendment is individual's financial difficulties may be to ensure the privacy of the records that necessary to achieve a higher degree of an indicator or result of other more would be collected, (2) there were no

• assurance that licensee "R" and "L" serious problems such as drug abuse, standards for the evaluation of applicants are reliable, trustworthy, and alcohol abuse, or dishonesty. information that would be collected and do not have any significant financial In addition to providing greater (3) there was no established time limit problems which may cause them to be assurance of an "R" and "L" licensee on how far back information could be susceptible to pressures, blackmail, or applicant's eligibility, the credit check collected. All three of these commenters coercion to act contrary to the national will achieve greater comparability presumed that this rule applied to large interest. between NRC's requirements and those numbers of workers at nuclear power of the Department of Energy and other stations. This is not so. These rules only EFFECTIVE DATE: April 30, 1990.

agencies which require the credit check apply to individuals who are being FDR FURTHER INFORMATION CONTACT: for their "L" and Secret clearances. The considered for access to U.S. Duane G. Kidd, Division of Security, requirement will also be more consistent Government classified information or Office of Administration, U.S. Nuclear with the investigative coverage access to or control over formula Regulatory Commission, Washington, proposed in the Nuclear Management quantities o[ Special Nuclear Material. DC 20555, telephone: (301) 492-4127. and Resources Council (NUMARC) With the exception of Fort Saint Vrain, SUPPLEMENTARY INFORMATION: On April guidelines for licensee personnel with which uses high enriched uranium fuel, 12, 1989, the Executive Director for unescorted access to protected and vital classified information or formula Operations (EDO) approved the areas of nuclear power plants. quantities of Special Nuclear Material immediate addition of a credit check to On November 30, 1989, the FBI are not normally present at a the scope of the initial investigation notified all Federal non-law commercial power reactor. Fort Saint coverage required for an NRC "L" enforcement agencies, including the Vrain is permanently shut down and is security clearance for NRC employees, NRC, that they would, effective January reducing its staff. That licensee is contractors, and other non-licensee 1, 1990, begin charging a $14.00 fee to attempting to dispose of its remaining personnel. The EDO also appro~ed the process fingerprint cards related to non-self protecting high enriched fuel initiation of rulemaking to implement security clearances. Previously there and, when it does that, will no longer be the same investigative scope change for had been no charge for this service. This subject to these rules. Until then it is "R" and "L" licensee applicants. The means the cost to NRC for processing a possible that a few additional security current investigative coverage for "R" licensee "R" special nuclear material personnel [due to attrition, etc.) may and "L" applicants normally consists of access authorization and "L" security need to be cleared. At other power a national agency check (NAC) clearance is increased. Because the fees plants there have been cases where a conducted by the Office of Personnel NRC charges licensees for these few senior management and safeguards Management (OPM). While a NAC clearances are dependent on NRC's related personnel have been cleared for provides important coverage of an costs to process them, it is necessary to access to clessified information. individual's background (e.g., FBI increase the fees to recover these However. to the best of NRC's criminal history, fingerprint. and name additional costs. knowledge, these rules will not apply to checks; record checks with OPM, the The applicable fee schedules have any tradesperson at any commercial Department of Defense (DOD), and been revised to reflect the additional U.S. light water power reactor. other applicable agencies), it does not cost associated with the conduct of the Though the three objections were provide information concerning an credit check and the FBI fee for clearly related to the presumed impact 11-SC-2

PART 11 STATEMENTS OF CONSIDERATION on tradespeople working at nuclear as a categorical exclusion in 10 CFR List of Subjects power plants, a situation not created by 51.22(c}(l}. Therefore, neither an evironmental impact statement nor an 10 CFR Part 11 these amendments, NRC has reevaluated the concerns they raised. environmental assessment has been Hazardous materials-transportation, First, there is no question that any prepared for* this final rule. Investigations, Nuclear materials, investigation of a person's background Paperwork Reduction Act Statement Reporting and recordkeeping involves a degree of invasion of privacy, requirements, Security measures, and an additional check, such as the This final rule does not contain a new Special nuclear material. credit check discussed in this or amended information collection amendment, increases the impact. The requirement subject to the Paperwork 10 CFR Part 25 NRC has decided that the National Reduction Act of 1980 (44 U.S.C. 3501 et Classified information, Investigations, Security and public health and safety seq.). Existing requirements were Penalty, Reporting and recordkeeping concerns for assuring the integrity, approved by the Office of Management requirements, Security measures. trustworthiness and reliability of and Budget, approval numbers 3150-0046, 3150-0047, and 3150-0062. 10 CFR Part 95 individuals who have access to classified information or access to or Regulatory Analysis Classified information, Penalty, control over formula quantities of . Reporting and recordkeeping Special Nuclear Material warrants these The Commission has prepared a requirements, Security measures. amendments. This is clearly evidenced regulat,ory analysis on this final For the reasons set out in the by the fact that the checks are required regulation. The analysis examines the preamble and under the authority of the for its own employees and are generally costs and benefits of the alternatives Atomic Energy Act of 1954, as amended, required throughout the U.S. considered by the Commission. The the Energy Reorganization Act of 1974, Government. Second, there are analysis is available for inspection in as amended, and 5 U.S.C. 552 and 553, procedures to ensure the privacy of the NRC Public Document Room, room the NRC is adopting the following records that may be collected under the LLB. 2120 L Street NW. (Lower Level), amendments to 10 CFR parts 11, 25, and provisions of these rule changes. Washington, DC. Single copies of the 95. Specifically, such records are protected analysis may be obtained from Duane from public disclosure under the G. Kidd, Division of Security, Office of SSFR 14379 provisions of the Privacy Act of 1974, as Administration, U.S. Nuclear Regulatory Published 4/17/90. amended, and are subject to the routine Commission, Washington, DC 20555, uses and safeguards enumerated for telephone: (301) 492-4127. 10 CFR Parts 11, 25 and 95 NRC Systems of Records, System NRC-Regulatory Flexibility Certification [RIN 3150-AD28) 39, "Personnel Se'curity Files and Associated Records-NRC." Third, 10 In accordance with the Regulatory CFR part 11, 25 and 95, which are Flexibility Act, 5 U.S.C. 605(b}, the Credit. Checks-Expanded Personl'!et .* affected by these rules changes, clearly Commission certifies that this final rule Securl~ Investigative Cove~ge * *

• indicate that any unfavorable does not have a significant economic .*,',., ....

Correction information developed would be impact on a substantial number of small evaluated in conformance with the entities. This rulemaking only applies to In rule document 90-7201 beginning on .procedures and requirements of 10 CFR those licensees and others who need to . page 11572 in the issue of March, 29, Part 10 "Criteria and Procedures for use, process, store, transport, or deliver 1990, make the following corrections: Determining Eligibility for Access to to a carrier for transport formula 1. On page 11573;.in the*firat:column, Restricted Data or National Security quantities of special nuclear material (as in the first complete.paragraph, i.n the* Information or an Employment defined in 10 CFR part 73) or generate, .fourth line "were" should.be inserted : Clearance" or 10 CFR Part 11 "Criteria receive, safeguard, and store National after "comments".* *

• and Procedures for Determining Security Information or Restricted Data Eligibility for Access to or Control Over (as defined in 10 CFR part 25). § 11.15 [Corrected]

Special Nuclear Material." 10 CFR parts Approximately 31 NRC licensee and 2. On page 11574, In § ll.15(f)(ZJ; in 10 and 11 have specific procedures both other license related interests would be the last sentence "(effective date of final for evaluating such information and for affected under the provisions of 10 CFR rulelJ should road "April 30, 1990'". assuring due process for any individual parts 11 and/or 25. However, 20 of these § 1.-1.16*.:'[Correctedl about whom the NRC may develop licensees, or other interests, have only a adverse information. Fourth, and finally, limited number of active clearances, e.g., 3. On the same page, In, the third the commenter is correct in the assertion one or two each, relating to classified cohm.m, in the heedirig*c;i( §:11;15' that there is no limit on the age of the safeguards activities. Because these "access". .was misspelled.'** records that could be collected. licensees are not classified as small § 95.5 [Corrected] However, under the standards of 10 CFR entities as defined by the NRC's size part 10 or 11, which would be used to standards (December 9, 1985; 50 FR *.*.4,Pn.page 11&75, in the second evaluate such information, the age of the 50241), the Commission finds that this *Column, ln.:the first line,.'.'inquirl!ls" was information would be relevant and rule does not have a significant misspelled. * . -. decide the weight it would be given in economic impact upon a substantial the final determination. The NRC is, number of small entities. .56FR5926 therefore, publishing this final rule as Published 2/14/91. Backlit Analysis Effective 2/14/91. originally proposed (with the addition of provisions necessary to recover the cost  : The NRC has determined that the of FBI charges for processing fingerprint *backfit rule, 10 CFR 50.109, does not Access Authorization Fee Schedule cards). apply to this final rule, and therefore, for Licensee Personnel that a backfit analysis is not required for See Part 25 Statements of Consideration Environmental Impact: Categorical this final rule, because these Exclusion amendments do not involve any The NRC has determined that this provisions which would impose backfits re.~~~t.i~ is ~~e tri>e of action described _ as defined in 10 CFR 50.109(a)(l). 11-SC-3

PART 11

• STATEMENTS OF CONSIDERATION 57FR2441 The NRC provided an exception in licensee provide the NRC with critical Published 1/22/92 § 11.15 that allowed individuals subject identifying data on the individual when Effective 2/21/92 to the Department of Energy's (DOE) submitting that individual's security Selective Reinvestigation Program for clearance package to the DOE for 10 CFR Part 11 DOE-Q access authorization to use the reinvestigation. If a need arises, the RIN 3150-AE03 DOE reinvestigation for NRC-U renewal NRC can obtain copies of the secµrity requirements. The investigative basis for clearance package from the DOE. This DOE-Lor DOE-Q Reinvestigation the DOE-Q is comparable to the comment has been adopted for the Program for NRC-R Access investigative basis of the NRC-U. NRC-R renewal requirements and Authorization Renewal Requirements Allowing this exception for NRC-U expandecJ..to the NRC-U renewal renewal requirements reduced requirements, and the final rule has AGENCY: Nuclear Regulatory administrative and investigative costs to bee_n revised to incorporate this Commission. the licensees and avoided duplicate comment. Additionally, in order to ACTION: Final rule. investigations of an individual. conform other regulatory text with the However, in 1985, the DOE-L planned changes, the introductory text

SUMMARY

The Nuclear Regulatory Selective Reinvestigation Program did to paragraph (c)(l) has been revised.

Commission (NRC) is amending its not meet NRC-R renewal requirements. regulations to .allow an exception to Therefore, no provisions were made for . Environmental Impact: Categorical NRC-R access authorization renewal allowing the use of the DOE-L Selective Exclusion requirements. The final rule allows Reinvestigation Program for NRC-R The NRC has determined that this acceptance of the DOE-L or DOE-Q renewal requirements. An NRC-R regulation is the type of action described Reinvestigation Program for NRC-R special nuclear material access as a categorical exclusion in 10 CFR access authorization renewal authorization is required for an 51.22(c)(1). Therefore, neither an requirements and reduces and clarifies individual whose job requires environmental impact statement nor an for the licensee 'the documentation unescorted access within protected environmental assessment has been required by the NRC when en exception areas but does not fall within any of the prepared for this final rule. is used. The final rule is intended to categories that require an NRC-U access reduce administrative and investigative authorization. Paperwork Reduction Act Statement costs to affected licensees and Subsequently, DOE implemented an This final rule does not contain a new administrative costs to the Federal "L" Reinvestigation Program which or amended information collection govemmenL Affected licensees are meets NRC-R renewal requirements .. requirement subject to the Paperwork those who use or possess a formula Accordingly, the NRC has determined Reduction Act of19BO (44 U.S.C. 3501 et quantity of special nuclear material. that it would be appropriate to amend seq.). Existing requirements were EFFECTIVE DATE: February 21, 1992. Part 11 to include the DOE-L program. approved by the Office of Management FOR FURTHER INFORMATION CONTACT: The NRC has also determined that and Budget, approval number 3150--0062. Ms. Rocio Castaneira, Office of Nuclear allowing the DOE-Q Reinvestigation Program for NRC-R renewal Regulatory Analysis Material Safety and Safeguards, U.S. requirements would be appropriate. The Nuclear Regulatory Commission, NRC has found that many individuals The Commission has prepared a Washington, DC 20555, telephone (301) that have NRC-R access authorizations regulatory analysis on this final 504-2392. also have DOE-Q clearances and are regulation. The analysis examines the SUPPLEMENTARY INFORMATION: thereby subject to reinvestigation by costi and benefits of the alternatives DOE. Additionally, *the title of the DOE considered by the Commission. The Background analysis is available for inspection in program is changed to reflect its current the NRC Public Document Room, room In 1985, 10 CFR part 11, "Criteria and title, i.e., "DOE Reinvestigation Procedures for Determining Eligibility Program." LL6. 2120 L Street, NW. (Lower Level), for Access to or Control over Special Washington, DC. Single copies of the Nuclear Material" was amended in Public Comments analysis may be obtained from Ms. § 11.15 to allow, among other things, an On September 30, 1991, the proposed Rocio Castaneira, Division of exception in the access authorization rule was published for comment (56 FR Safeguards and Transportation, Office renewal requirements for NRC-U 49435). The comment period expired on of Nuclear Materiel Safety and renewals. These requirements apply to October 30, 1991. One comment was Safeguards, U.S. Nuclear Regulatory licensees who use or possess a formula received during the comment period. Commission. Washington. DC 20555, quantity of special nuclear material. An The commenter agreed that amending telephone (301) 504-2392. NRC-U special nuclear material-access the rule would be appropriate to allow Regulatory Flexibility Certification authorization is required for- the use of the DOE-Q or DOE-L (1) All positions in the licensee's Reinvestigation Program for NRC-R In accordance with the Regulatory security force; renewal requirements. However, the Flexibility Act of 1980, 5 U.S.C. 605(b), (2) Management positions with the commenter objected to the the Commission certifies that this final authority to direct the actions of documentation required to be submitted rule does not have a significant members of the security force or alter to the NRC when the exceptions economic impact upon a substantial security procedures, direct routine allowed were used. number of small entities. The final rule movements of special nuclear materiel. Specifically, the proposed rule would affects three nuclear fuel facility or direct the routine status of vital have required the licensee to submit a licensees. Because these licensees are equipment: duplicate security clearance package to not classified as small entities as (3) All jobs which*require unescorted .the NRC when submitting the detined by the NRC's size standards access within onsite alarm stations; and individual's security clearance package (November 6, 1991; 56 FR 58671), the (4) All jobs which r:equire unescorted to the DOE for a reinvestigation. The Commission finds that this final rule access to special nuclear material or commenter recommended that the does not have a significant economic within vital areas. 11-SC-4

PART 11

• STATEMENTS OF CONSIDERATION impact upon a substan_tial number of EnforcemeaL U.S. Nuclear Regulatory such reports. and the keeping of such small entities.
• Commluion. Wa1hi113ton, DC 20555, records with respect lo, and to provide Backfit Analysis telephone (301) SCM-2741. for 1uch inspections of. activities and

                                                ~ A I I Y INFOMIATION:                        studies of types specified In Section 31 The NRC has determined that the             I. Bitcqround                                 and of activities under licenses iHued backfit rule, 10 CFR 50.109 does not              II. Analysis of Public CPmmenl!'i.           pursuant to 11ection1 53, 83, 81. 103. and apply to this final rule, and therefore,          Ill. The New Regulations.                    104. as may be nece1111ary to effectuate that a backfit analysis is not required           IV. Admini1trstive St11tcmenls.              the purposes or this Act. Including because these amendments do not                                                                section 105." Thus. the CommlHion's involve any provisions which would I. Background rulemaklng authority in these sections is impose backfits as defined in 10 CFR                  On January 3. 1992 (57 FR 222). the      the basis for the 11ub1tantive rules of the 50.109(a)(l).                                     Nuclear Regulatory ~mmission                 Commi1111ion. Section 18tx authorize* Jhe published In the F ~ I Rezjller              Comml111lon to*ettabll1h, by regulation:

Lisi of Slihjects in 10 CFR.Part 11 propoted reviaion1 to ita regulations 1tandarda to en,ure Rnanclal security Hazardous materials-transportation, which will clarify the applicability of the for decontamination attd Investigations, Nuclear materials, criminal penalty provisions or the decommlssionins of site* containing Reporting and recordkeeplng Atomic Enel'8)' Act of 1954. as amended. certain byproduct material, specifically requirements, Security measures,* to the NRC-1 regulations. The proposed mill tailings. The remaining section Special nuclear material. rule we~ Intended to identify more (16tp) authorizes the Comml&11lon to For the reasons set*out in the clearly those regulations which are make. promulgate, issue, rescind, and preamble and under the authority of the issued under statutory authority lhal amend rules and regulations which may Atomic Energy Act of 1954, as emended, may subject the violator to criminal be nece1111ary lo carry out the purposes the Energy Reorganization Act of 1974, penalties for willful violation of. of the Act. This last section pertains to as amended, and 5 U.S.C. 552 and 553, attempted violation of, or conspiracy lo administrative (nonsubstantive) the NRC is adopting the following violate, those regulations. regulations. al!I opposed to the amendments to 10 CFR part 11,. The NRC'1 regulations are issued substantive. specined matters of under authority ofSecllon 181. among sections 16th. i. and o. Section 161p is others. of the Atomic Energy Act of 1954, used for the promulgation of those rules 57 FR 41375 as amended (the Act). Within Section that are necessary lo administratively Published 9/10/92 161. there are five provisions, Sections complement the rules Issued pursuant to Effective 10/13/92 161b. 16ti. 16to. 161p.*and 161K. that 181b, t61i, and t6to. In light of the more pro,*ide the CommiSBion with authority specinc authority or sections 16th. i. o. Access Authorization Fee Schedule for to issue regulations. The rulemaking or x, Section 161p is considered a Licensee Personnel authority delegated to the Commission catchall provision that ha111 no in sections 161b.161i, and 1610 provides application where a different provision See Part 25 Statements of Consideration the basil 'for most of the subs tan live of Section 161 provides s~fic rules issued by the Commi&1ion that are authority. codiRed In 10 CFR chapter I. Section 222 of the Act provides 57 FR 55062 Section 16th of the Act authorizes the criminal penalties for willful violation Published 11/24/92 Commisalon to "establish by rule. (including an attempted violation or a Effective 12/24/92 resulation. or order. 1uch 11tandards and conspiracy to violate) of sections 57, 92. in1truction11 to govem the possession and 101 of the Act, and unlawful 10 CFR Parts 11, 19, 20,'21, 25, 26, 30, and use of special nuclear material. interference with any recapture or entry 31,32,33,34,35,39,40,50,52,~3,54, source material. and byproduct material under 1ecllon 108 of the Act. Section 223 55, 60, 61, 70, 71,'72, 73, 74, 75, .95, 110, as the Comminsion may deem necessary of the Act provides criminal penalties 140, 150 . or desirable to promote the common for willful violation, Including an

• defense and security or to prolect health attempted or a conspiracy violation. of RIN 3150-AD62 or to minimize danger to life or property any provision of the Act for which no

                                                  * * * ." Section 16ti states thal the        criminal penalty is specifically provided Clariflcatlon of Statutory Authority for        CommissiQn may "prescribe such               and for willful violation of any Purposes of Criminal Enforcement                regulatlons or orden as it may deem          regulation or order prescribed or issued AGENCY:     Nu-clear Regulatory                 nece111ary (ti lo protect Restricted Data    under sections 65. 161b. 1611, or 1610 of Commission.                                     received by any person in connection         the Act.

ACTION: Final rule .. - .. . . with any activity authorized pursuant to In the pest the NRC has provided this AcL (2) to guard against the loas or notice as to which regulations are

SUMMARY

The Nuclear Regulatory diversion of any special nuclear subject to the penalty provisions of Commission (NRC) is amending its material acquired by any person section 223 by includlns a paragraph in regulations to clarify the applicability of pursuant to section 53 or produced by the authority citation for each affected the existing criminal penalty provisions any person in connection with any part of 10 CPR chapter I that identifies of the Atomic Energy Act of 1954, as activity authorized pursuant to this Act. provisions of the appropriate amended (the Act), to willful violations to prevent any use or disposilion thereof regulations. by section or para11raph.

of certain of the Commission's which lhe Commission may deh!rmine to that the NRC considers promulgated reg'ijlations. The rule identifies more. be inimical to the common defonse and under sections 16th, 16ti, or 1610. clearly those current regulations which- security. * *

• and (3) to govern any However. the NRC has Identified mey_ subject the vio)ator. \o criminal
• activity authorized pursuant to this Act. several problems with this method of penalties for willful,violation of, *, * *
• in order lo protect health itnd to providing notice. It may not always be

  ,attempted violation of, or conspiracy to        minimize danger to life or property."        readily apparent from a 1tatement In the
  .violate, those regulations,                     Section 1610 authorizes the Commission       authority citations for each part that the EFFECTIVE DATE: Deceinbei: 24, 1992.            to "require by rule, regulation. or order. purpose of that statement 11 to provide

• FOR FURTHER INFORMATION CONTACT-:

Mr:Jemes*Liebennan;* Director, Office of* . 11-SC-~

PART 11

• STATEMENTS OF CONSIDERATION notice of potential criminal pen11ltle1 for The NRC"s consideralion of the civil penalties. not that a violation, with certilin willful violation,. To fully commenls follows. the requisite criminal degree of appreciate ihi1 notice, a reeder*need11 to willfulness, of regulations issued under A. Legal Issues
• the Act would be subjecl lo civil undersland*the rulemakins provl1ion1 of secllons 18th. 1611. and 1610. a11 well as 1. NRC Authority penalties only. Moreover, there is no lhe criminal penalty provisions or Comment. The NRC has exceeded its provision in section 206 that explicitly 11eclion 223. From time 10 time. errors authority to issue regulations under* authorizes the issuance of regulations.

have been made which hampered lhe sections 161 b, i, and o. Some The specific oulhorlty for these effectiveness of'includiilg the criminal commenlers complained tha*t the range regulations. is found in sections 161b and penalty not.ice provisions in lhe of Commission regula lions to which ttno of the AcL Because adequate authorities section,. In eome in111a*ncea. authority to i:,sue regulations had criminal.penalties atlach was loo broad. authorily cit-.ttons have be.en !l\mply to already beengranled under lhose in that Congress did nol intend to make section 181 without any Indication of provisions of lhe Atomic Energy Act, it all substantive NRC regulations subject which subsection of t8t wae used to

• was nol mecessary that section 206 of to criminal penalties. the EnersY Reorganization Act grant promulsate the resulatlon. Subatanthie Response. The sole piece of legislative explicit authority lo issue regulations resulation*, such as to CFR 50,7(1). history from the 1954 Acl cited in under that Act. As lo section ZlO, that which addreues discrimination against support of this position is lhal section provision provides no direct aulhorily lo any_ employee for raising safety 223 is chara~lerized as establishing "the the NRC. Rather, the drafters of that concern,. were overlooked. When criminal.penalties foe v.iolalion.of * *
• provision recognized the existing

 § 50.7(a)*was originally lsaued. there                    rule11.:and regulations issued under             au.thorily under the Alomic Energy Acl. .

was no specific notice in the authority certain specified limited statutory The clear purpose of section 210 was to section that this section was Issued authority." (Emphasis.added by . provide a mechanism for individuals to under sections 161b, 1811, or 1810. This commenter). The NRC belie,:es, obtain a remedy for discrimination.*. oversisht resulted in a failure to provide however, that section 223 is clear on its Thus, the legul authorily for 10 CFR 50.7 notice lo !he.public thal lhls subslanlive face. *section 223 states that criminal and similar regulations in other to CFR

• resuletion was promulgated under lhe . penalties ere available for 'ei1ery willful parts in sec~ion 161i of the Atomic specific subsections for which lhe Acl violation or regulations issued under Energy Act 89 well BS section 210..

provides criminal penalties For willful section 65 and sections 161 b, i;, and o; The Commission has mailltained that violations.' These types of problems these sections of the Act are the "certain the scope of the Atomic Energy Act ia. have affected the NRC's abilily to refer limited stalutory aulhority"' lo which the .broad enough that its authority extends cases lo lhe Department of. Justice and legislative. hislory refers. lo the regulation of those supplyins the seek an appropriate crhnlnal remedy. Some*commeriters also stated that the components of a facility or activity The NRC has considered how lo approach used by the NRC appears lo regulated uncller that Act. The legislative provide more effective and consislenl violate ihe general n1le of statutory history of the Energy Reorganization Act notice of criminal penalti!HI For willful construction lhal criminal st11tutes are to supports this view and suggests that viola lions of specific resulations. The* be strictly construed and are not to be section 206 was a mandale'from the NRC has also considered how to extepded* by inference or implication. As Congress to the. Commission to exercise minimize imprecision that could staled above, however, section 2Z3 is its preexmting authority. Section 206

 ;eopardlze appropriate criminal                           clear, and lhe NRC's approach is                  was enacted by the Congress in enforcement action asalnst those who                      intended to provide notice, not to extend         response lo an increase in safety willfully violate these regulatory                        the reacb or section 2Z3 by inference,           defects, to empbasiu the need for requirements. As more fully explained in                  implication or otherwise. The rule as             prompt identification of deficiencies at Part Ul of the.Supplementary                              drafted ~arly states in *each 10 CFR             aU le~els offacilily construction. .

Information section. the final rule part thal all regulations in the*part are includi~ ~ponenls supplied by . re11ruclured the notice provisions lo subject to criminal penalty except those . vendors. Citins the fact.that component accomplish these ends. specifically enumerated- as excepted. faiwrea 8CC8Unted for more than balf of This* language is *s1raightfoiwanf. the abnormal occurrences reported. to . II. Analysis of Public Comments unambiguous, and constitutes clear . the :Atomk: Energy Commission (AEC} in In response lo the January 3. 1992. notice in.a narrative form, .replacing the 1973,.the Congress delerminei:l lo

• proposed rule. the NRC received legalistic notice t;antained in the- legal provide, specifically, for the reporting of comment, from eleven orsanizations or authority provisions. A person sl'lOuld safely defects and noncomplian~. and individuals. Five of the comments were reasonably be able .to read thiniew rule section 206 emphasizes the importance from membera of the medical and ~erstand:that, uuless specifiea}ly *of prompt reporting. Section 206- should community, including hospitals and excepti:id in the new rqle, a willful . not be iaterpreted as an extenaion of
• medical societies. Three sels of violation of any NRC.regulation in.the 10 AEC authority, but rather aa. a mandate comments were received from utilities CFR parl may subject II person lo
• by the Congress that lhe.AEC must wilh nuclear facilities. One eel was
• criminal liability. . exerciae Its authority to compel prompt submitted by a nuclear lnduslry A few commenter& pointed to sections. reporting by both licensees and vendors.

orsanizallon. Two sets of comments *206 a,!ld 210 of the Energy The Commission interpz:ets the were received From law firms lhal Reorganization Act as evidence that statement inl.he Senate Committee represent nuclear ulllllies. The Congress did nol intend criminal . Report that there is no '.'similar

• commentera generally*were crilical or *penalties lo attach lo yiolations of NRC provision" ia .the Atomic Energy Act*

certain features or lhe proposed rule. . reg1,1~tloua ijnplementing those sections, requirins the: reporliRg of safety defects e.g.,'10CFR 50.7. However; the and noneompliance art just that and not

• The omii1ion 111 lo 10 Ct"R so.11111 .....

                                                          ~l~girilative history=shows* only that *the        as a statement that there is no autbority 1ubM!qucntlf c:orrecled. (MNrch *21. *191111: 55 ~"R     *congress'delermined that certain                 in the Acl to.require lhia type: of     .

uwoe1. *individuals -.iolatinirthe,provisions or'

• reporting.*Sectioo 206{a)*Hmiti: the civil sectipn ZOUtseir should be subject to. pellBlty liability of individualts to*

11-SC-6

PART 11

• STATEMENTS OF CONSIDERATION individual directors a!ld responsible that the rule will not operate similar sections are not. e.g .. § 72.106 is officers of firms who knowingly !)r retroactively. covered. but the other sections pro\*iding consciously fail to.report as niquired, There are two categories of siting evaluation factors. (§§ i2.9Z. 72.94.

and does not otlulrwi11e address the regulations ihat are impacted by the 72.98, 72.100. 72.104) arc not co,*cred and NRC's enforcement authority. Because final rule. The first category is the large § 110.9a is covered but other sections the regulations issued lo implement group or regulations that previously also listing plant material and section 206 could have been issued contained a statement. in the authoritv equipment(§§ 110.8, 110.9) are not solely on the basis of the authority citation for the part. identifying the

• covered.

contained in the 1954 Act, sections 161 regulation as being promulgated under Response. As indicated in the January b, i, and o are clear authority for their section 161b. i. or o. for purposes of 3. 1992 proposed rule. prior to publishing issuance. The NRC has also addressed section 223. The second category is the proposed rule. the NRC e\*eluated this issue in the Statement of comprised of those substantive each section in its regulations to identify Considerations for the recent rule on regulations where the authority citation which sections are promulgated under did not previously state that the sections 161b. 161i or 1610 of the Act. Deliberate Misconduct by Unlicensed regu.l11tions were issued under section The proposed rule also explained that. Per!lons (56 FR 40664; August 15, 1991). 161b. i. or o. in determining which regulations ere Some of the same commenters also As to the regulations for which substantive. the NRC intended to noted that the conferees substituted the appropriate notice was provided through include those regulations that create words "knowingly and consciously" for. the statement in the authority citation. duties. obligations. conditions. the words "knowingly and willingly" criminal penalties have been. and restrictions. limitations. and when the provision for criminal penalty continue to be, available for willful prohibitions. The ~gulations to be in section 206 was eliminated. The violations occurring .prior to the included are those that describe commenters cite this language es proof enactment of the final rule. In these activities requiring an NRC license. the that Congress did not provide for cases, there would be no reliance on the .actions and conduct required of a . criminal penalties for violation of this final rule for the notice of pote~tial .licensee under ncense conditions. and sectioa,. and the Commission does noI criminal penalties. Because any criminal the information a licensee must collect. disagree with thisfoterprete.tlon. That is prosecution baaed on actions or report, record and protect. not the same thing as saying, as the occurrences before the effective date or In consideration of*the comments commenters do, that Congreas. failed to the new rule would not rely on ttiat rule. received on the proposed rufe. the NRC provide for criminal penalties for willful Bowen v. Georgetown Unfrers~tJ* reviewed the determinations or the violation of the regulatiomdssulld to Hospital. 488 U.S. 204 (1988). cited in the sections in.its regulations that are enforce section 206. The relevant section comments for the presumption against promulgated under sections 161b, 161i or in this case is section 223 of the Atomic retroactivity of administrative rules. is 1610. With respect to the specific Energy Act. which provides for criminal inappoaite, as is the argument that the sections addressed by the comments. penalties against one who ..will£ully final rule.could be an "ex post facto" several changes have been made in the violates any regulation issued under criminal law prohibited by the . allocations and the reasons for the section 161b. i, or o. oCthe Act. Because Constitution. Prospectively, the final NRC's determinations are explained in the part 21 regulations are issued under rule provides notice of potential. c:riminal .. Part .*11 of. this Supplementary liability for willful violations of these Information. As to the remaining these Sections, witlful violation of those regulations by a narrative statement in a *sections in the regulations. the NRC regulations subjects a violator' lo substanlive rule rather than:by* the more adheres to the prior determinations. criminal penalties under section 223. legalistic format of citing it in the 4. Use of Criminal Penalties One commenter clled.Kerr:McGee

• authority citation. .

Chemical Corp. (Kress Creek

• For regulations not previously stated Comment. One commenter stated the
• Decontamination), ALAB-885, 27 NRC to be subject to criminal penalties. the view that the NRC should reevaluate 59 (1988), for proposition .that the. Atomit. final rule provides notice of pofential whether it is sound public policy to Safety and Licensing Appeal.Soard has criminal penalties for willful violations. impose criminal penalties for each specifically 4iaapproved the,prac~ice of For these regulations, the NRC agrees regulation in the proposed rule. In citing section 161 b, i, and o. as general that the final rule cannot be relied upon support of this view, the commenter authority for regufations issued to for notice of potential criminal liability contended criminal penalties should be implement completely separate., for violations occurring before the narrowly applied and deference should legislation. That case involved the use effective date of the final rule. Thus. be given to due process in the criminal by the NRC of regulations promulgated there will be no retroactive operation of context.

by another regulatory agency and the final rule lo these regulations. Reso<'nse. As stated abo\'c, section accordingly ls *distinguishable from the 2::!3 or' the Act expressly pro,*idcs for

3. Authority To Impose Criminal criminal penalties for a willful violation situation at hand. Penalties: Allocation or Specific of (or an attempt or conspiracy to

2. Retroactivity Sections willfully violate) any regulation Comment. One commenter stated that prescribed or issued by the NRC under Comment. The. rule should clearly the Act's substantive rulemaking the NRC should reevaluate whether state-that it wiUnot OJierate authorities. The Act therefore each section of its regulations was ..

retroactively. adopted under the authority of a specific incorporates the judgment that it is Respo~. A1ew commenters urged section of the Act. The commenter also sound public policy to pro'l,'ide criminal that the rule should expl'llS&ly state that argued that the failure of the penalties for willful violation of ii will not operate retroaetive}y. While substantive/administrative distinction is substantive regulations the Act the .new rule wall not operate .* illustrated by the NRC's failure lo authorizes NRC to prescribe. Moreover. retroactively, it is:not ne~~l'}'.toso-. J*xplain in the notice of proposed criminal penalties furnish an important. state in regulatory text. A lien~iince hail rulemeking why some sections are additional enforcement tool to ensure been added to the Supplementary

• st:hject to criminal sanctions whilr compliance and to drier future Information section that, explicitly, iltate11 11-SC-7

PART 11

• STATEMENTS OF CONSIDERATION violations. See Memorandum or section of NRC regulations w*hich the opportunity for error that had existud in Understanding between lhe Nuclear NRC bad identified as included under the past.

Regulalori* Commission and lhc the.Act's ruJemaking provisions covered 6. Specificity of Sections hi Support Department of Justice (53 FR 50317: by criminal penalties. In fact. some December 14. 1988). Criminal Prosecution interested persons so commented. as reflected in other parts of this notice. Comment. One commenter contended

5. Inadequate Justification for Allocation that many sections of the NRC's existing of Sections (See discQssion of§ 50.'7, etc. in response ll.A.1). regulations, which the NRC was Comment. One commenter expressed . With respect to the commenter'.s first proposing to make subject to criminal the view that the proposed rule would listing-those seclions of NRC

• penalties, are not sufficiently clear to designate regulations for criminal* put individuals on notice of the conduct penalties_ lNholesale wiltiout specific regulations which were not identified. to be penalized!. In support of this view, explanation.of the rationale for specific prior to the proposed rule, as prescribed the commenter questioned what conduct sections or paragraphs and would under the rulemaking provisions would willfully violate § 52.63 given that reverse prior determinl!lions in this covered by lhe Act's criminal some paragraphs .cover actions of the regard. The commenter included an penalties-the proposed rule explained NRC itself. The commenter expressed appendix .that .lists the sections in the 1111:11 from time to time. errors*had been the view that the NRC should consider Commission!s existing regulations which made in providing notice of the criminal whether § 52.63 would give adequate are not presently subject to section 2_23. penalty provistons of the Act and that, notice of the legal standards being but would be made subject by the in some instances, the provisions had imposed.

proposed rule. The appendix also lists not been specified or were overlooked. Response. As lo the general. comment sections. ohvhich only certain The propo11ed rule also stated that the questioning the clarity (If existing NRC subsections are currently subject lo purpose of the proposed rule was to requirements, NRC regulations do section 223, which "would be made remedy prior errors and oversights, provide clear and adequate notice or the entirely subject to section 223 by the minimize errors that could jeopardize legal standards applicable to all persons proposed rule: . appropriate enforcement action, and subject lo the regulations, includins The commenter also stated that 1hr. P.liminate uncertainty and provide clear

• applications and licensees. In addition general notice of proposed rulemaking und consistent notice. Thus, commenters lo the regulatory language of the did not sufficiently identify the pertinent were apprised of the agency's provisions themselves, the structure, chanses to permit careful analysis of underlying intentions, were able to history and motivating purpose ior a issues of potentially great significance. identify the specific regulatory sections particular regwation generally lend The commenter also stated that the which would be affected, and were free further certainty to the conduct to be proposed rule.:involves changes of to pr.ovide their views on NRC's punished. Morec;,ver, to answer any substance, . as*opposed to format. and* tiroposal. reasonable doubt that may persist for a argued tliat. 'because or the many As lo the commenter's second particular requirement, persons subject affected seciioitil. the explanation in the. listing-those parts of the NRC's to NRC reguJations have available to no.lice clic;l):ioi "offer.adequate regulations which had identified some, them all of the explanatory Information opportuniU,,~o comment on the proposed but not all, sections as *subject to compiled in an open rulemaking process changes. criminal penalties prior to the proposed as well as a body of public, detailed, Response. The proposed rule pro~ided rule-the proposed rule stated that the and explicit NRC regulatory guidance notice of the proposed action and a NRC considered how best to provide and virtually all related NRC statement of-the NRC's rationale which information.

notice which would minimize errors that Further, the CommiBSion's intent in cove*red each potentially affected might potentially jeopardize appropriate section of NRC regulations. The the present rulemaking is not to rewrite enforcement action and which would regulations or establish whlch proposed rule s*iated. among other eliminate uncertainty and provide clear thinss, that the intent *or the rule was lo provisions should be subject to criminal and consistent notice. The proposed rule enforcement. The latter was done by the identify more clearly and consistently also stated that the NRC was proposing those particular sections of NRC Congress. Rather, this rulemaking is to adopt a standard format for all 10 merely to give notice of which reg1dations that include cFiminal CFR partrJ and explained that the enforcement penalties. The proposed regulations are subject to criminal rule also explained that. for purposes of proposed standard format would enforcement by virtue of having been determining the specific NRC specifically identify any non-substantive Issued under sections 161b, i, or o. .regulations prescribed under the sections of the regulations so 11s to Whether a published regulation is rulemaking authorities that include exclude from criminal enforcement adequate to maintain a criminal criminal penalties, the NRC included penalties "those sections that are mainly prosecution is left for the Department of reg.ulations creating duties. obligations. administrative and do not address Justice to decidle in a given case. condi(ions. restrictions. limitations and substantive matters." Thus, interested Therefore, this rulemaking does not prohibitions. The proposed rule noted

• parties were apprised of the NRC's. address the po:saibility that in a given that these regulations include intention lo adopt a standard notice criminal prosecution, the NRC's regulations that describe the activities format that wou1d *identify sections of authority for a specific regulation might requiring a license. the actions and NRC regulations that were promulgated be challenged.

conduct required of licensees under under sections 161b, i, or o and, With respect to § 52.63, the regulation license conditions. and the information accordingly, would not single out provides clear and adequate notice; ii 10 be collectl!d,* reported. recorded and . p1:1rticular subsection11 or paragraphs or prescribes certain actions by a licensee protected by, a licensee and NRC. Ariy its regulations that were lo be excluded with respect lo a standard design comm~nter was fr:ee.lo expreBB views in from. criminal enforcement penalties. In certification, p1*ovides that the licensee light of the rationale given in lhe this connection, the standard notice may make design* changes without prior proposed rule and to comment on each format; by focusing on sectionlf of NRC Commission approval under specified regulations, will eliminate the circumstances, and requires the licensee 11-SC-8

PART 11 **STATEMENTS OF CONSIDERATION to maintain and make available records might be hesitant to submit information regulations that are substantive, if of all facility changes until*license at an earlv stage out of fear that the willfully violated, are already subject to

• termination. * * . information might later be found lo bP criminal penalties. These same incorrect, and thus the provider of the regulations have been subject to B. Policy Issues original false Information could be criminal penalties since their

1. General. subject to criminal liability. Therefore, promulgation. The NRC believes the licensee would delay submitting licensees seek to employ people who

a. Adequacy of current enforceme11l infonnalion to be more certain of its desire to perform a job properly and in mechanisms. . . accuracy.* compliance with all requirements.

Comme11t. Two commenters indicated Response. This rulemaking does not that current enforcement mechanisms 2. Specific Medical Issues change the situation for licensees. are adequate and questioned the need Licensees have always been subject to a. Effect on medical practice*and for the rulemaking. prosecution for material false patient care. Response. The Congress, in section statements under 18 U.S.C. 1001. The Commehl. The regulations impinge on 223 of the Act. provided lhat willful NRC's reporting regulations and their or are incompatible with the practice of violations of regulations that are requirements to submit complete and medicine or efficient patient care and promulgated under certain sections of accurate information were promulgated deviation from the regulations is the Act are subject to criminal penalhes. under section 1610 and. therefore, a sometimes necessary. Therefore, making Thus, the Congress has given notice of person providing false infonnalion has, these provisions subject to criminal possible criminal prosecution for in the past, been subject to a potential penalty puts practitioners In an violations of requirements promulgated criminal prosecution (52 FR 49362; untenable situation. under certain specified statutory December 31, 1987).:11 Response. The NRC does not agree provisions. The NRC believes that rather than that lhe regulations are incompatible The NRC. in it9 regulations, has in the

• diminishing licensee performance, the with the practice of medicine or efficient past provided notice of what has been final rule should improve it. The rule patient care. The NRC is sensitive to promulgated under those specified provides greater clarity as to just what patient care needs and has gone to great statutory provisions. Given that the adions are--and are not-subject to lengths lo avoid any intrusion or authority for a regulation is section 161h, criminal prosecution. To the extent that interference in the exercise of i, or o of the Act, crim:nal sanctions the possibility of prosecution deters physicians' judgment regarding what is follow by virtue of the terms of section impro*per behavior, the rule furthers that the bee! medical treatment for their 223. The NRC has no choice as to what concept. As for reporting information, patients. This approach is consistent is potentially criminal or not. To give the threat of prosecution is only a with the NRC's Medical Use Policy clearer notice, this rulemaking clarifies concern to those who would supply statement (44 FR 6242: February 9, 1979).

the impact ol promulgating a regulation incorrect Information with the Intent of In those Infrequent cases when patient under those specific provisions. Thus, doing 110, or Intentionally *wtthhold care may be impacted by compliance information, knowing that reporting is with the regulations or license this rulemaking will make it easier for conditions, such as lifesaving situations, persons subject to NRC regulations to required. If a report made in good faith is based on the best information situations where the procedure is not know what conduct may be subject to criminal prosecution and, therefore. available when submitted. a later readily available al another institution provide additional deterrence against correction based on additional nearby, or situations in which the information or analysis would not physician believes the procedure is the willful violations. procedure of choice for the patient and it The final rule provides a more render the provider of the original information subject to criminal is consistent with other applicable straight-forward system of providing regulations, appropriate end timely notice of which regulations are subject prosecution. Because the NRC presumes that licensees discourage criminal actions are recommended by the to criminal enforcement. Some licensee and approved by the NRC on a comments on the proposed rule behavior, this final rule should not adversely impact licensee performance. case-by-case basis. incorrectly suggest that the NRC is b. R.egulcitian of practice i,sues by the embarking on e new effort here. These c. Effect on licensee's ability to attract personnel. states. comments may reflect a lack of Comment. Medical and pharmacy understanding of the prior manner of Comment. The proposed rule would have an adverse effect on licensee's practice and malpractice issues are giving notice. With t!ome exceptions, regulated oy the states and should not regulations remain in the same posture ability to attract personnel because it would add a layer of liability. be regulated by the NRG as well. vis-a-vis criminal prosecution as they Response. Although inedical and were prior to this rulemaking. The Response. The considerations expressed in the previous responses pharmacy practice and malpractice are changes that are being made are to regulated by the states, NRC regulations correct prior errors and to harmonize apply to this comment as well. The NRC are based on the Atomic Energy Act treatment of similar provisions among which provides an independent basis for the various parts of 10 CFR chapter I. 2 One commenler believed lhel lhe proposed rule Federal regulation of nuclear materials. These changes are further described in would make 10 CFR 50.9 newly subjecl lo criminal enforcemenl. When promulseled, § 50.9 fend olher Although NRG and state regulations

• Part Ill of the Supplementary similar seclions) were 1111 promul11eled under may cover the same activity, drug or Information section. Seclion 1610 of lhe Act. end were noliced 11s beins device, they cover separate aspects of

. b. Effect on licensee performance.          *uujecl to criminul cnforcemenl. Confusion m*y          the activity, drug or device. State boards have occurred concerning lhis aeclion. us lhe 10 Comment. One commenter was                CFR published for 1988 and 1989 showed lhe seclion      of pharmacy license facilities, including concerned lhal the proposed regulalions      correctly under lhe Authority lisllng, but 11pperenlly  radiopharmacies, for the practice of could have an adverse effect on licensee    due lo on error ii was omilted when republishing        pharmacy: whereas the NRG licenses

. performance. The commenter sugge11led the Authorily !isling in a later rulem11king and lhe radiopharmacies for the possession and volumes published 1here11fler. This lype of situellon that while* the NRC seeks early 11cce11s to illuntrnlcn one reuaon for !he udoplion of this linul use of licensed material and is information as to an event, a Ucensee rule. concerned with the safe handling end 11-SC-9

PART 11

• STATEMENTS OF CONSIDERATION use of the licensed material. State that, if willfully violated, are subject to reported, recorded, and protected by boards of medicine license individual criminal enforcement penalties. Vvl1ile licensees and Qhe NRC. 3 physicians to practice medicine to the statement of general authority for The regulations stating what is to be include ell aspects of patient care. NRC each part will remain the same, the submitted in an application for an NRC regulations focus on the safe use* of
• authority cittations will no longer license have not been included as*

licensed material by authorization user provide notice by the inclusion of a substantive regulations. This is because physicians. As part of its criteria for specific reference to those regulations those requirements are stated in a authorization, the NRC requires that issued under sections 161b, 161i, or 1610 general manner without language that

-physicians be licensed by a state board      for the purpose of section 223 of the Act.       specifically imposes a requirement.

of medicine. Therefore, enforcement of These paragraphs within the authority Nonetheless, any willful submission of NRC regulations, including criminal citations are removed. material false information to the NRC in penalties for willful violations of NRC Instead. each appropriate part in 10 a license application remains subject to regulations, is independent of activities CFR chapter I contains a section that criminal enforcement as a violation of of the elates. addresses criminal penalties. The new the NRC's regulations on completeness

c. Need to de/av the rule or exclude "Criminal penalties" section added to and accuracy of information (See e.g .. 10 certain areas. each part in this final rule contains a CFR 30.9, 50.9. and similar provisions)

Comment. The proposed rulemaking statement that for the purposes of and under the provisions of 18 U.S.C. should not apply to parts 33, 34, and 35. section 223 all the regulations in the part 1001. In a few instances, a section that Application of the rule to these parts are "issued under one or more of appears similar to the application should be delayed until medical sections 161b. 161i, or 1610," except as requirement sections discussed above is regulations are revised or should otherwise noted in a separate issued under section 161 b, i, or o, and exclude violations relating to patient paragraph. Any section of the subject to criminal prosecution, because care. regulations which is not s'ubstantive in the section also contains a provision Response. The criminal penalty nature is specifically identified and that imposes a specific requirement. provisions of the Act are.already excluded from criminal enforcement . such as § 50.34(e). which requires an applicable to to CFR parts 33, 34, and 35. penalties. Those sections that are applicant to protect Safeguards The final rule adds notice of criminal mainly ac;iministrative and do not Information. This is a result of the penalties to one section of 10 CFR part address substantive matters are decision to address regulations al the 34, I 34;4, concerning records, to

• excluded. section level and not attempt to separate harmonize with other NRC paragraphs that have substantive recordkeeping requirements. The final In addition. it is the NRC's* intention, provisions from paragraphs that do not.

rule also adds notice of criminal when each new regulation is This decision was made because the penalties to two sections of 10 CFR part promulgated in the future, to include, practice of listing at the paragraph level 35, I 35.5; also concerning records in when applicable. a statement in the frequently contributed to errors and order to harmonize with other NRC Supplementary Information published in confusion in the past. 'Thus, es -discussed recordkeeping requirements and the Federal Register that the regulation in the response to comment 11.A.5, the

 § 35.972, concerning recentness of            is issued under sections 181b, 161i, or         standard format adopted in this training. Therefore, es to the nl,lted        1610. lf a regulation is not issued under       rulemaking addresses material at the parts, the final rule mainly restates, In a   one of these sections, the criminal             section level.

penalty section for the part in which the As noted in some of the response to more consistent and clear manner, those regulation is contained will be amended comments, some sections that were not regulations which may subject the violator to criminal penalties. to specifically include the new previously noticed as subject to criminal regulation provisions in the listed enforcement have been included under

d. Effect on research.

Comment. The proposed regulations exceptions. The inclusion of a "Criminal the criminal enforcement provisions will stymie research. penalties" provision in the body of effective with this rule. Notice of the Response. As indicated in the regulations in each substantive part will application of section 223 of the Act may response to the previous comment, the pro\'ide explicit notice of potential have been overlooked when those criminal penalty provisions of the Act. criminal penalties and should enable all regulations were originally promulgated. already apply, to the same extent. to persons subject to the rules to readily In other cases, the reference may have determine whether willful violation of been simply to their being promulgated

*research programs under part 35. The the regulation could result in criminal         under section 181, without further clarifications in this rulemaking, except liability, such as a fine or imprisonment.      designation, and this rulemaking as noted above, merely restate the            The provisions of this final rule take current authority. There is no indication                                                     resolves any potential issue as to their effect on the date specified and are not        status. As noted, other seclions are in the comment that these provisions

, have stymied research in the past. retroactive. included because they contain a As stated above, in determining which substantive requirement in one or more III. The New Regulations NRC regulations are substantive and, paragraphs, and their inclusion is The NRC considered how to best accordingly, are promulgated under appropriate under the standard format provide notice as to which regulations sections t61b, 161i, or 1610 of the Act, developed in this rulemaking. Also, are iBBued under sections 161b, 161i, or the NRC has included those rules.that some sections are.being included to 1610, and to minimize errors that could create duties, obligations, conditions, make their treatment consistent with jeopardize appropriate enforcement restrictions, limitations, and action. To eliminate any uncertainty and prohibitions. Regµlations that are

• In lhe case or u rcgulHlion iasucd under seclione to provide clearer and more consistent considered substantive int:lude those 161 b. i. or o. which rereni lo en appendix (e.g.. 10 notice of criminal penalties for willful that describe which activities require an C~'R 50.54(0) reforri.ng lo Appendix J-Primury NRC license. what a licensee. must do Reuclor Conlainmenl Leakage Tcelins for Wulcr-violations of specific regulations, the cooled Power Reuclore), the appendix is ulso Commission is adopting a standard under license conditions., and what deemed lo huvc been iasued under scclione 161 b. i, format for identifying those regulations inforrna lion. is required. to* be collected, . oro.

11-SC-10

PART 11

• STATEMENTS OF CONSIDERATION similar sections in other parts of 10 CFR provision. The final rule adopts end will not impose new or additional chapter 1 consistent language In each part and requirements on NRC licensees.

ln light of comments received and adds those provisions to parts that may Back/it Analysis subsequent further analysis. a few be the basis for civil enforcement action. changes in the allocation of sections This action docs not add any new The NRC has determined that the have been made since the notice of sanction, but clarifies that civil and backfit rule, 10 CFR 50.109, does not proposed rulemaking was published. criminal enforcement authority is

• apply to this rule, and therefore. a These changes are reflected in this final available. Previous provisions as to backfit analysis is not required for this rule. Included among those changes are criminal sanctions that appeared in rule because these amendments do not

§§ 31.7 and 40.22 which have been "Violations" sections In some parts have involve any povisions which would identified as being issued under section been deleted because they are replaced -impose backfits as defined in 10 CFR 161 h. i. or o. as they contain substantive by the new "Criminal Penalties" 50.109(a)(1). provisions. and to conform with the sections. List of Subjects trca tment of similar provisions concerning general licensees. Section IV. Ad~nistrative Statements 10 CFR Port 11 71.1 is also being identified as issued Environmental Impact: Categorical Criminal penalties, Hazardous under section 161 b, i, or o. to treat it in Rxclusion materials-transportation, the same manner as § 60.4, which Investigations, Nuclear materials, contains similar substantive provisions. The NRC has determined that this Reporting and recordkeeping Sections 72.92, 72.94, 72.98, 72.100, final rule is the type of action described requireme.nts, Security measures, 72.102. and 72.104, concerning siting in categorical exclusion 10 CFR Special nuclear material. evaluation factors for storing spent fuel 51.22(c)(Z). Therefore, neither an and waste, are presently listed as being environmental impact statement nor an 10 CFR Part 19 promulgated und'er provisions of section environmental assessment has been Criminal. penalties. Environmental 161i of the Act. and are, therefore. prepared for this final rule. protection, Nuclear materials, Nuclear subject to criminal enforcement. The Paperwork Reduction Act Statement power plants and reactors, Occupational proposed rule would have changed that safety and health, Radiation protection, allocation and treated these sections as This final rule does not contain a new Reporting and recordkeeping nonsubstantive. After review of or amended Information collection requirements, Sex discrimination. comments and further evaluation, these . requirement subject to the Paperwork sections are being retained in the group Reduction Act of 1980 (44 U.S.C. 3501, et 10 CFR Part 20* promulgated under section 161 b, i, or o, seq.). Existing requirements were Byproduct material, Criminal because they set forth important approved by the Office of Management penalties, Licensed material. Nuclear substantive criteria that must be met. and Budget, approval numbers: 31~ materials. Nuclear power plants and This treatment is consistent with the 0001. 0002. 0007, 0008, 0009. 0010, 0011. reactors, Occ;upational safety and treatment of§ 72.106. Among the 0014, 0015. 0016. 0017, 0018, 0020, 0032. health, Packaging and containers, changes, §§ 110.28 and 110.29 are 0035, 0036. 0039. 0044, 0046, 0047, 0055, Radiation protection, Reporti~g and substantive and therefore are included. 0062. 0123, 0126, 0127, 0130, 0132. 0135, recordkeeping requirements, Special These sections do not stand alone, but 0146, 0151, and 0155. nuclear material, Source material, rather are related to other substantive Waste treatment and disposal. sections that specifically refer to them Regulatory Analysis 10 CFR Part Zt (e.g .. §§ 110.22.110.23, 110.24, and The NRC has prepared this regulation 110.25) and are subject to criminal in order to identify the-provisions of its Nuclear power plants and reactors, sanctions. Similarly,§§ 110.8 and 110.9 regulations that are lasued under section Penalty, Radiation protection, Reporting are'being identified as substantive to 223 of the Act for purposes of.imposing and recordkeeping requirements. achieve consistency with § 110.9a and criminal penalties on those who willfully 10 CFR Port ZS because these sections relate to the violate .those regulatory requirements. Classified-infonnation, Criminal restrictions enunciated in§§ 110.5 and The NRC recognizes a need to clearly, penalties, Investigations, Reporting and* 110.6 which are subject to criminal simply, and accurately identify these recordkeeping requirements, Security sanctions. This change also resolves the provisions to provide public notice that question raised by a commenter (see measures. violations of certain provisions may 11.A.3.J as to the seemingly disparate subject the violator to criminal penalty. 10 CFR Part 26 treatment of§ 110.9a, which resulted The amendments presented in this rule Alcohol abuse, Alcohol testing, from an error in the printing of the are intended to accomplish this Appeals, Chemical testing, Criminal proposed rule. Sections 110.123 and objective. This rule does not result in the penalties, Drug abuse. Drug testing. 110.125 are being identified as creation of new potential liabilities and Employee aBBistance programs, fitness substantive in light of the significance of imposes no new requirements on NRC for duty, Management actions, Nuclear the obligations specified in those licensees. This discussion constitutes power reactors, Protection of sections and the treatment of the regulatory analysis for this rule. information. Reporting and comparable sections in part 110. The recordkeeping requirements. reference to§ 110.144 was a printing Regulatory Flexibl1ity Certlficotion error end hes been corrected to read As required by the Regulatory 10 CFR Part 30

§ 110.124.                                  Flexibility Act of 1980 (5 U.S.C. 605(b)).       Byproduct material, Criminal In addition, the NRC noted in the         the Commission certifies that this rule      penalties. Government contracts.

proposed rule that inconsistent language will not have a significant economic Intergovernmental relations. Isotopes, had been used in the various parts to impact on a substantial number of small Nuclear materials. Radiation protection, describe civil remedies, and that a few entities. This rule will not result In the Reporting and recordkeeping parts did not contain any such creation.of any new potential liabilities require men ts: 11-SC-11

PART 11

• STATEMENTS OF CONSIDERATION 10 CFR Part 31 reactors. Probabilistic risk assessment, 10 CFR Part 73 Byproduct material, Criminal Prototype. Reactor siting criteria, Criminal penalties, Hazardous penalties, Labeling, Nuclear materials, Redress of site, Reporting* and recordkeeping requirements, Standard ma terials,-transportation, lncorpora tion Packaging and containers. Radiation by reference, Nuclear materials, Nuclear protection, Reporting and recordkecping design. Standard design certification, power plants 111nd reactors, Reporting requirements. Scientific equipment. io-CFR Part 53 . . and recordkeeping requirements.

10 CFR Part 32 Administrative practice and Security measures. Byproduct material. Criminal procedure. High-level waste, Nuclear 10 CFR Part 74 penalties, Labeling, Nuclear materials, materials, Nuclear power plants and reactors. Reporting and recordkeeping Accounting, Criminal penalties, Radiation protection, Reporting and recordkeeping requirements. requirements. Spent fuel, Waste Hazardous materials-transportation, treatment and disposal. Material control and accountin~, 10 CFR Part 33 Nuclear materials. Packaging and 10 CFR Part 54 containers. Radiation protection, Byproduct material, Criminal penalties, Nuclear materials. Radiation Administrative practice and Reporting and recordkeeping protection, Reporting and recordkeeping procedure, Age-related degradation, requirements, Scientific equipment, requirements. Backfitting. Classified information, Special nuclear material. 10 CFR Part 34 Criminal penalties, Environmental 10 CFR Part 75 protection, Incorporation by reference, Criminal penalties, Packaging and Nuclear power plants and reactors, Criminal penalties, Intergovernmental containers, Radiation protection. Reporting and recordkeeping relations. Nuclear materials; Nuclear Radiography, Reperting and requirements. power plants and reactors. Reporting recordkeeping requirements, Sc1enufic and recordkeeping requirements, equipment, Security measures. 10 CFR Part 55 Security measures. 10 CFR Part 35 Criminal penalties, Manpower 10 CFR Part 95 training programs, Nuclear power plants Byproduct material. Criminal and reactors, Reporting and Classified information, Criminal penalties, Drugs, Health facilities, recordkeeping requirements. penalties, Reporting and recordkeeping Health professions. Incorporation by requirements. Security measures. reference, Medical devices. Nuclear 10 CFR Part 60 materials. Occupational safety and 10 CFR Part 110 Criminal penalties. High-level waste. health,. Radiation protection, Reporting Nuclear power plants and reactors, and recordkeeping requirements. Administrative practice and Nuclear materials. Reporting and procedure, Classified information. 10 CFR Part 39 recordkeeping requirements. Waste Criminal penalties, Export, Import,

• treatment and disposal. Incorporation by reference, Byproduct material, Criminal penalties, Nuclear material. Oil and gas 10 CFR Part 61 .Intergovernmental relations, Nuclear exploration-well logging, Reporting materials, Nuclear power plants and Criminal penalties, Low-level waste, reactors, Repoll'ting and recordkeeping and recordkeeping requirements, Nuclear materials, Reporting and
• Scientific equipment, Security measures, requirements, Scientific equipment.

recordkeeping requirements, Waste Source material, Special nuclear 10 CFR Part 140 material. treaiment and disposal. 10 CFR Part 70 Criminal penalties, Extraordinary 10 CFR Part 40 nuclear occurrence, Insurance, Criminal penalties, Government Criminal penalties, Hazardous Intergovernmental relations, Nuclear contracts, Hazardous materials- materials-transportation,* Material materials, Nuclear power plants and transportation, Nuclear materials, control and- accounting, Nuclear reactors, Reporting and recordkeeping Reporting and recordkeeping materials, Packaging and containers. requirements. requirements, Source material, Uranium. Radiation protection, Reporting* and recordkeeping requirements; Scientific 10 CFR Part 150 10 CFR Part 50 equipment, Security measures, Special nucl~ar material. Criminal penalties, Hazardous Antitrust, Classified information, materials-transportation, Criminal penalties, Fire protection. 10 CFR Part 71 Intergovernmental relations, Nuclear Incorporation by reference, materials, Reporting and recordkeeping Intergovernmental relations, Nuclear Crjmil)al penalties, Hazardous materials-transportation, Nuclear requirements, Security measures, Source power plants and reactors. Radiation material, Special nuclear material.

• protection, Reactor siting criteria, materials, Packaging and containers.

Reporting and recordkeeping Reporting and recordkeeping

• For the reasons set out in the
• requirements. requirements. preamble and under authority of the Atomic Energy Act of 1954, as amended, 10 CFR Part 52 10 OFR Part 72 the Energy Reorganization Act of 1974, Administrative practice and Criminal penalties. Manpower as amended, and 5 U.S.C. 552 and 553.

procedure, Antitrust, Bat:kfitting," training program.a: Nuclear materials, the NRC is adopting the following Combined license. Criminal penalties, Occupational safety and health, amendments to JO CFR parts tt. 19, 20, Early site permit, Emergency planning-, Reporting and rei:ordkeeping 21.25.26,30,31,32,33,34,35,39,40,50, Fees, Inspection, Limited work

• requirements, Security mea11ures, Spent 52, 53, 54,55,60,61,70,71,72;73,74,75, authorization. Nuclear power plants and fuel.
• 95,110.140, and 150.
• 11-SC-12

PART 11

• STATEMENTS OF CONSIDERATION 5BFR44435 to expire five years from the issuance be reduced by three hours per licensee.

Published B/23/93 date unless a timely application is made This reduction includes the time Effective 9/22/93 for renewal. An application for renewal required for reviewing instructions, must include a personnel security forms searching existing data sources, Access Authorization Fee Schedule for packet, including a Questionnaire for gathering and maintaining the data Licensee Personnel needed, and completing and reviewing Sensitive Positions (SF-86, Parts 1 and See Part 25 Statements of Consideration 2), two completed standard fingerprint the collection of information. Send cards (FD-258), other related forms, and comments regarding this burden a statement of continuing need by the estimate or any other aspect of this licensee. collection of information, including For those individuals who also have suggestions for reducing the burden, to an active DOE or other comparable the Information and Records access authorization and are subject to Management Branch (T6-F33), U.S. DOE's or another Federal agency's Nuclear Regulatory Commission, reinvestigation program, the application Washington, DC 20555-0001, and to the that must be filed with the NRC consists Desk Officer, Office of Information and of an NRC Form 237, "Request for . Regulatory Affairs, NEOB-10202, Access Authorization," or comparable (3150-0050, -0062, end -0046); Office list containing the individual's full of Management and Budget, name, social security number, date of Washington, DC 20503. birth, type of request (renewal), the Regulatory Analysis agency conducting the reinvestigation and the dote of reinvestigation The NRC has prepared a regulatory submittal, and a statement of continuing analysis on this final rule. The analysis 60FR26355 need by the licensee. examines the costs and benefits of the Published 5/17/95 The final rule eliminates the five-year alternatives considered ~y the . Effective 6/16/95 expiration date for "U", "R", "Q" and* Commission. The analysis is available "L" access authorizations and requires for inspection in the NRC Public renewal application paperwork to be Document Room, 2120 L Street, NW 10 CFR Parts 11 and 25 submitted to NRC only for an individual (Lower Level), Room LL6, Washington, RIN 3150-AF21 who hes not been reinvestigated by DOE DC. Single copies of the analysis may be or another Federal agency for any reason obtained from James J. Dunleavy, NRC Licensee Renewal/ within the five-seven year _span Division of Security, Office of Reinvestigation Program permitted in the re~lations. Administration, U.S. Nuclear Regulatory

• This final rule reauces paperwork for Commission, Washington, DC 20555-AGENCY: Nuclear Regulatory the licensee and NRC, cuts red tape, and 0001, telephone (301) 415-7404.

Commission. achieves the timely reinvestigation of Regulatory Flexibility Certification ACTION: Final rule. licensee personnel on a more cost effective basis. As required by the Regulatory

SUMMARY

The Nuclear Regulatory The comment period on the proposed Flexibility Act of 1980, 5 U.S.C.605(b).

Commission is*amending its regulations rule (December 28, 1994: 59 FR 66812) the Commission certifies that this rule to eliminate the five-year expiration closed on January 27, 1995. No does not have a significant-economic date for licensee "U" and "R'" special comments were received from*the impact on a substantial number of small nuclear material access authorizations public. This final rule becomes effective entities. This final rule only applies to and "Q" and "L'.' access authorizations 30 days after publication in the Federal those licensees and others who need to and to require the licensee to submit Register. use, process, store, transport, or deliver NRC renewal application paperwork to a carrier for transport, formula only for an individual who has not been EI!..vironmental Impact:*Categorical quantities of special nuclear material (as reinvestigated by the Department of Exclusion defined in 10 CFR Part 73) or generate, Energy (DOE) or another Federal agency The NRC has determined that this receive, safeguard, and store National within the five-seven year span final rule is the type of action described Security Information or Restricted Data permitted in the regulations. This final in categorical exclusion 10 CFR (as defined in 10 CFR Part 95). rule is necessary to achieve

• 51.22(c)(l). Therefore, neither an Approximately 20 NRC licensees and administrative efficiencies that reduce environmental impact statement nor an other license-related interests are paperwork and cut red tape in a manner environmental assessment bas been affected under the provisionsoflO CFR that is consistent with National prepared for this final rule. Parts 11 end 25. Because these licensees Performance Review initiatives. are not classified as small entities as Paperwork Reduction Act Statement defined by the NRC's i;ize standards EFFECTIVE DATE: June 16, 1995. This final rule amends information (April 11, 1995; 60 FR 18344), the FOR FURTHER INFORMATION CONTACT: collection requirements that are subject Commission finds that this rule will not James J. Dunleavy, Division of Security, to the Paperwork Reduction Act of1980 have a significant economic impact Office of Administration, U.S. Nuclear (44 U.S.C. 3501 et seq). These upon a substantial number of small Regulatory Commission, Washington, requirements were approved by the entities.

DC 20555-0001 telephone (301) 415- Office of Management and Budget, I 7404. Backfit Analysis approval numbers 3150-0050, -0062 SUPPLEMENTARY INFORMATION: The NRC and -0046. Because the rule relaxes The NRC hes detemiined that the currently requires "U" and "R" special

• existing information collection backfit rule, 10 CFR 50.109, does not nuclear material access authorizations requirements, the public burden for this apply to this final rule, and therefore, and "Q" and "L" access authorizations collection of information is expected to that a backfit analysis is not required 11-SC-13

PART 11

• STATEMENTS OF CONSIDERATION because these amendments do not involve any provisions which would impose backfits as defined in 10 CFR 50.109(a)(l).

List of Subject 10 CFR Part 11 Hazardous materials-transportation, Investigations, Nuclear materials, Reporting and recordkeeping requirements, Security measures, Special nuclear material. 10 CFR Part 25 Classified information, Criminal penalties, Investigations, Reporting and recordkeeping requirements, Security measures. For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR Parts 11 and 25. 11-SC-14

UNITED STATES NUCLEAR REGULATORY COMMISSION RULES and REGULATIONS TITLE 10, CHAPTER 1, CODE OF FEDERAL REGULATIONS-ENERGY IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN AGENCY PROCEEDINGS STATEMENTS OF CONSIDERATION 59 FR23119 On October 28, 1981 (46 FR 53189), Resources Council (NUMARC). The Published 5/5/94 the NRC published a proposed rule NRC's consideration of the comments Effective 6/6/94 designed to implement the EAJA in the follows. Federal Register. However, serious A. Time Deadlines 10 CFR Part 12 doubt developed as to the need for the regulations. A significant consideration 1. Decision on the Petition for Increase RIN 3150 AE61 Equal Access to Justice Act: in this regard was the impact of a statutory bar *against the use of funds of Maximum Rate for Attorney Fees Comment. ACUS recommended that appropriated to the NRC "to pay the the rule provide a specific time frame Implementation expenses of, or otherwise compensate, for agency action on a petition for AGENCY: Nuclear Regulatory parties intervening in regulatory or adjudicatory proceedings." This rulemalcing to increase the maximum Commission. rate for attorney fees. . ACTION: Final *rule. provision first appeared in the Energy Response. The EAJA provides a $75 and Water Development Appropriations hourly ceiling on attorney fees, but

SUMMARY

The Nuclear Regulatory Act of 1981 (Pub. L No. 96&-367, Sec. allows agencies to raise the sta~utory Commission (NRC) is amending its 502, 94 Stat. 1344, 1345 (1980)), and has ceiling by regulation. The proposed rule regulations by adding new provisions continued to appear each year in provides that any person may file with designed to implement the Equal Access subsequent NRC appropriation acts. In _the Commission a petition for to Justice Act (EAJA). The EAJA addition, case law developed in the rulemalcing to increase the $75 provides for the award of fees and 1980's indicating that the Commission maximum hourly rate for attorney fees, expenses to certain individuals and would receive judicial support if it and refers to 10 CFR 2.802 and 2.803 for businesses that prevail in agency formal determined that no NRC license the procedures to be followed with adjudicatory proceedings in which the proceeding of any kind is covered by the respect to such petitions . .Neither the agency's position Is determined not to EAJA. proposed rule nor 10 CFR 2.802 nor 10 have been substantially justified. With the enactment of the Inspector CFR 2.803 provides a specific time EFFECTIVE DATE: June 6, 1994. General Act Amendments of 1988 (Pub. frame for agency action on the petition FOR FURTHER INFORMATION CONTACT:

L 100-504, 1102 Stat. 2515), which for rulemaking. A sentence has been Susan Fonner, Office of the General established an Office of the Inspector added to 10 CFR 12.107 requiring the Counsel, U.S. Nuclear Regulatory General in the NRC, the NRC became Commission to determine what action it subject "to the Program Fraud Civil will take Qn the petition within 90 days Commission, Washington, DC 20555, Remedies Act (PFCRA), 31 U.S.C. ch. telephone (301) 504-1634. after the petition ls filed. .

38. Hearings under the Program Fraud SUPPLEMENTARY INFORMATION: Civil Remedies Act are expressly 2. Decision on the Application for

l. Background. covered by the EAJA, necessitating the Award of Attorney Fees ll. Responsllll to Comments Received. issuance of EAJA regulations by the Comment. ACUS recommended that Ill. Administrative Statements. NRC. However, because of the length of the rule provide a specific time frame.

I. Background time that had gone by since the NRC for the adjudicative officer to issue an issued the 1981 proposed EAJA rule, the initial decision on the application for The Equal Access to Justice Act Commission replaced it with a new award of attorney fees. . (EAJA) became law on October 21, 1981 proposed rule, published on August 2, Response. 10 CFR 12.307 of the (5 U.S.C. 504). The EAJA authorizes 1993 (58 FR 41061). The new proposed proposed nile slates requirements for agencies to award attorney fees and rule was essentially similar to a model the adjudicative officer's initial decision other expenses to parties that prevail rule suggested by the Administrative on the application for award of attorney over an agency in certain agency Conference of the United States (ACUS) fees, but does not prescribe a time limit proceedings under specified for agency adoption. (May 6, 1988, 51 for the adjudicative officer to issue the circumstances. Generally, for an award FR 16665.) decision. A sentence has been added to

• to be made, the proceeding must be one 10 CFR 12.307 requiring the initial that is "required by statute to be IL llesponses to Comments lleceived decision to be issued within 90 days determined on the record." See, In response to the August 2, 1993 after completion of proceedings on the Ardestani v. U.S. Department of Justice, proposed rule, the NRC received one set application, but permitting the .

---U.S.                    , 112 S.Ct. 515     of comments from ACUS and one set         adjudicative officer to extend the time (1991).                                       from the Nuclear Management and           limit after notice to the parties of the 12-SC-1

PART 12

• STATEMENTS OF CONSIDERATION reason for the delay. Authority is participating in Federal programs. Contract Disputes Act or a Program provided for the adjudicative officer to Nevertheless, in'what is perhaps an Fraud Ci vi I Remedies Act bearing is extend the time period in order to excess of caution, we have included In covered by the EAJA. Nevertheless, the prevent the interruption of cases NRC's EAJA rule a statement on staying Commission does not wish to frame its presenting pressing health and safety the effect of the initial decision during EAJA regulations in such a way as to concerns. The NRC expects that an appeal to the Commission. preclude potential applicants for extensions will be issued sparingly. attorney fee awards from raising the C. Proceedings Subject to the EA/A issue of EAJA coverage, if they can make B. Exhaustion of Administrative Comment. NUMARC commented that a good faith argument that the Remedies Llie rule should be revised to make clear proceeding in which they have been Comment. ACUS stated that if the that the only proceedings subject to involved falls under the EAJA. In NRC believes that a request for. NRC's EAJA rule ere those conducted addition, there is always the possibility administrative review should be a pursuant to the Program Fraud Civil of new enactments that could make the prerequisite to judicial review, it should Remedies Act.. EAJA applicable to proceedings not recast 10 CFR 12.308 (Agency review) in Response. The EAJA applies only to previously entertained by the agency.

light of the Supreme Court's decision in an agency adversary adjudication. 50 Therefore, the Commission has decided Darbyv. Cisneros, _ _ U.S. ___, U.S.C. 504(a). The tenn "adversary not to state that the NRC's EAJA rule 113 S.Ct. 2539 (June 21, 1993). adjudication" is defined by 5 U.S.C.. applies only to a proceeding under the Response. Within the last year, the 504(b)(l)(C) to mean an appe~l !)fa . Program Freud Civil Remedies Act. Supreme Court cast new light on the decision made pursuant to section 6 of Nevertheless, the Commission has requirements for exhaustion of the Contract Disputes Act of 1978 (41 decided to amend 10 CFR 12.101, administrative remedies before U.S.C. 605) before an agency board of 12.102, and 12.103 to clarify its intent appealing an agency decision to the contract appeals, a hearing conducted regarding the scope of coverage of the courts. In Darbyv. Cisneros, the Court under 31 U.S.C. ch. 38 (PFCRA), and an regulations. The amendment does not held that an agency cannot insist on adjudication under 5 U.S.C. 554 (the make express reference to any type of exhaustion of intra-agency appeals prior Administrative Procedure Act). Section proceedings other than appeals under to judicial review unless the agency 554 of the Administrative Procedure Act the Contract Disputes Act and promulgates rules that require intra- expressly states that (with certain adjudications conducted pursuant to the agency appeals and stay the effect of exceptions) it applies "in every case of Program Freud Civil Remedies Act, but agency decisions during such appeals. adjudication required by statute to be it contains a general provision that wm The Commission believes that for* detennined on the record after encompass other types of proceedings purposes of judicial and administrative opportunity for an agency hearing." that may fall witl1in the parameters of economy a request for administrative A proceeding for the purpose of the EAJA. This leaves room for case-by-review should be a prerequisite to granting or renewing a license is case cietenninations on applicants' judicial review, particularly because the expressly excluded from EAJA coverage claims of coverage in areas that have not NRC frequently entertains proceedings by 5 U.S.C. 504(b)(l)(C). However, there been addressed previously by statute, that encompass highly technical is no express exclusion of proceedings case law, or express Commission matters. , suspending, revoking, or amending a interpretation. The cross-reference in 10 CFR 12.308 licen$8, including that for a nuclear to the review procedures set out in 10 reactor. As indicated in the . III. Adminit.trative Statements CFR 2.786 should be sufficient to satisfy Supplementary Infonnation for l'lo'RC's the commenter that the NRC has Enllironmental Impact: Categorical proposed EAJA rule, the question of. E,cclusion addressed the Darby case ruling in these such proceedings was at least addressed regulations, because 10 CFR 2.786(b)(1) partially in 1983, when a materials The NRC has determined that this expressly provides that the filing of a license amendment proceeding was regulation is the type of action petition for review is mandatory for a judicially held as not being required by described in categorical exclusion 10 party to exhaust its administrative statute to be conducted "on the record ... CFR 51.22(c). Therefore, neither an remedies. Nevertheless, It may be In that case, the court declined to read environmental impact statement nor an considered fairer notice to state the section 189(a) of the Atomic Energy Act environmental assessment has been requirement in 10 CFR 12:308 itself. of 1954 (AEA) as requiring an on-the- prepared for this rule. Therefore, the NRC has amended 10 record hearing, in the absence of clear CFR 12.308 to state unambiguously that Paperwork Reduction Act Statement congressional intent to trigger the an aggrieved party is required to seek formal on-the-record.hearing provisions The information collection Commission review of the adjudicative of the Administrative Procedure Act. requirements contained in this rule are officer's initial decision .. West Chicago, Ill. v~ U.S. Nuclear The application of the part of the exemrt from the Paperwork Reduction Court's opinion on staying the effect of Regulatory Commission, 701 F.2d 632 Act o 1980 (44 U.S.C. 3518(c)(1)). (1983). Since that time, the Commission the initial decision seems inapposite in Regulatory Analysis the context of an EAJA administrative has gone on record that it interprets proceeding, because it makes little sense section 189a of the AEA as not requiring The EAJA provides that indh-iduals to speak of a stay of an initial decision formal hearings in reactor licensing and businesses that meet certain net denying the application for award of proceedings. En Banc Brief for worth* and other requirements and attorney fees, whi.ch is the type of Respondents dated August 30, 1991 prevail over the NRC in an adversary decision most likely to be appealed. A (filed in the U.S. Court of Appeals for adjudication in which the NRC's successful applicant for an award is not the District of Columbia Circuit, No. 89- position is not substantially justified likely to appeal unless he or she is 1381, Nuclear Information and Resource may be awarded fees and expenses Service v. NRC, at pp 32-38).

• incurred in connection with the dissatisfied with the amount of the award. This poses a ,rery different type In light of the above, it is not proceeding. Recent events, most notably of situation from that in the Darby case, unreasonable to conclude that no NRC the NRC's publication ofa final rule where the Court had before it an agency proceeding other than an appeal to a implementing the Program Fraud Civil decision debarring petitioners from board of contract appeals under the 12-SC-2

PART 12

• STATEMENTS OF CONSIDERATION Remedies Act and actions thereunder, suggest that it is necessary for the NRC to adopt procedures to govern the
• receipt and determination of applications for EAJA fees. The procedures adopted mirror in important respects the model rule promulgated by the ACUS. The NRC has fulfilled the statutorily mandated process of consultation between the Chairman af the ACUS and the agency with respect to EAJA implementing procedures. See 5 U.S.C. 504(c)(l). The Commission believes that the procedures adopted nre preferable to other procedural requirements that might be imposed.

The foregoing discussion constitutes the regulatory analysis for this final rule. Regulatory Flexibility Certification In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission certifies that if promulgated, this rule will not have a significant economic impact on a substantial number of small entities. The rule merely will establish a procedural framework for the submission and determination of applications for fees and expenses incurred in participating in NRC adjudications and will not itself impose significnnt economic benefits or burdens. Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this rule, because these amendments do not involve any provisions which would impose backfits as defined in 10 CFR 50.109(e)(1). List of Subjects in 10 CFR Part 12 Adversary adjudications, Award, Equal Access to Justice Act, Final disposition, Net worth, Party. For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 552 and 553, the NRC is adopting a new 10 CFR part 12. 12-SC-3

UNITED STATES NUCLEAR REGULATORY COMMISSION ___ RULES and REGULATIONS- - - - TITLE 10, CH~PTER 1, CODE OF FEDERAL REGl,JLATIONS-ENERGY [PAiTl PROGRAM FRAUD CIVIL REMEDIES L!!_J STATEMENTS OF CONSIDERATION 56FR47132 SUPPLEMENTARY INFORMATION: At that time, the Act did not apply to Published 9/18/91 the Nuclear Regulatory Commission. Effective 10/18/91 Background However, that Act has since become In October 1986, Congress enacted the applicable to the Commission as a result Program Fraud Civil Remedies Act, of the enactment of the Inspector Public Law No. 99-509 [codified 31 General Act Amendments, Public Law 10 CFR Part 13 U.S.C. 3801 through 3812), to establish 1~04. October 18, 1988. Those an administrative remedy against any amendments, inter a/ia, added the RIN 3150-AD71 person who makes a false claim or Nuclear Regulatory Commission as an written statement to any of certain "establishment" under the Inspector Program Fraud Clvll Remedies Act General Act and, by doins so, operated Federal agencies. In brief, it requires the AGENCY: Nuclear Regulatory affected Federal agencies to follow to bring the Commission within the Commission. certain_procedures in recovering provisions of the Program Fraud Civil penalties [up to $5,000 per claim) and Remedies Act. ACTION: Final rule. These regulations are essentially the assessments [up to double the amount falsely claimed) against persons who file same as the model rules recommended

SUMMARY

This final rule implements the false claims or statements for which the by the PCIE. They incorporate, where Program Fraud Civil Remedies Act of appropriate, definitions to fit the 1986. The Act authorizes certain Federal liability is $150,000 or less. The Act further requires each affected agency to Commission's organization. They agencies, including the Nuclear

• prescribe the procedure under which Regulatory Commission, to impose, promulgate rules and regulations necessary to implement its provisions. false claims and statements subject to through administrative adjudication, the Act will be investigated and civil penalties and assessments against Following the Act's enactment, at the request of the President's Council on reviewed, and the rules under which any any person who makes, submits, or ensuing hearing will be conducted.

presents a false, fictitious, or fraudulent Integrity and Efficiency [PCIB) an claim or written statement to the interagency task force was established agency. These final regulations establish under the leadership of the Department the procedures the Commission will of Health and Human Services to follow in implementins the provisions of develop model regulations for the Act and specifies the hearing and implementation of the Act by all appeal rights of persons subject to affected agencies. This action was in penalties and assessments under the keeping with the stated desire of the Act. Senate Governmental Affairs Committee that "the regulations would be EFFECTIVE DATE: October 18, 1991. substantially uniform throughout the government" (S. Rep. No. 99-212, 99th Cong., 1st Sess. 12 [1985)). Upon their FOR FURTHER INFORMATION CONTACT: completion, the PCIB recommended John Cho, Office of the General Counsel, adoption of the model rules by all U.S. Nuclear Regulatory Commission, affected agencies. Washington, DC 20555, Telephone: 301-492-1585. 13-SC-1

PART 13

• STATEMENTS OF CONSIDERATION Statutory Scheme its view, unauthorized and unneeded and loss recoupment authority upon the Under the Act, false claims and enforcement mechanism, to ensure that agency. Congress, subsequently, also statements subject to its provisions are the Commission receives complete and saw the need for independent Inspectors to be investigated by an agency's accurate information from its licensees. General at additional agencies, investigating official. The results of the The commenter suggests that the including the NRC, that had important investigation are then reviewed by an Commission dispense with further missions and programs that require agency reviewing official who rulemaking but that if the Commission strict controls against fraud, waste and determines whether there is adequate decides to proceed, it should make clear abuse. Congressional Record S. 14446 evidence to believe that the person that the regulations will not be used as (October 4, 1988). It enacted the named in the report is liable under the an additional enforcement mechanism Inspector General Act Amendments in Act. Upon an affirmative finding of for safety or license-related submittals. furtherance of that*purpose.

adequate evidence, the reviewing In suggesting that the Commission In view of the common purpose and official sends to the Attorney General a cease further rulemaking, Winston & interrelationship of the Acts and the written notice of the official's intent to Strawn questions the Commission's manifest objective of Congress tci refer the matter to a presiding officer for conclusion that the addition of the provide the agencies in--olved with the an administrative hearing. The agency Nuclear Regulatory Commission as an tools of those Acts to combat the institutes administrative proceedings establishment under the Inspector problem of waste, fraud and abuse in against the person only if the Attorney General Act operated to amend the the programs and ope-rtions of the General or the Attorney General's Program Fraud Civil Remedies Act so as agency, the CommisCion is persuaded designee approves. Any penalty or to bring the Commission within its that the better interpretation of the Acts assessment imposed under the Act may scope. Winston & Strawn refers to the is that adopted by the Commission. The be collected by the Attorney General general rule of statutory construction construction suggested by Winston & through the filing of a civil action, or by cited in Hassett v. Welch, 303 U.S. 303, Strawn would impute to Congress the offsetting amoUDts, other than tax 314 (1938), providing that when a statute incongruous intent of mandating an refunds, owed the particular party by adopts a part or all of another statute by Inspector General for the Commission the Federal government. a specific and descriptive reference while at the same time denying the For purposes of this Act, these thereto, the adoption takes the statute as agency the remedial authority provided regulations designate the Inspector it existed at the time of adoption and by the Program Fraud Civil Remedies General or the Assistant Inspector does not include subsequent additions Act to deal with waste, fraud and abuse General for Investigations as the or modifications of the statute so taken in the programs and operations of the agency's investigating official. They also unless it does so by express intent. agency. That construction would not designate the Deputy General Counsel That rule of construction, however, advance the objective of either the for Licensing and Regulation or his or has its exceptions. It does not apply if Inspector General Act or the Program her designee as the reviewing official. the reference to the adopted act is Fraud Civil Remedies Act. Any administrative adjudication under general rather than specific. Nor does it

• As to the second of Winston &

the Act will be presided over by an control if there are strong Congressional Strawn'& comments, the existing Administrative Law Judge and any indications that a different conclusion statutory and regulatory enforcement appeals from the Administrative Law was intended. Clark v. Crown mechanismo (including the use of Judge's decision will be decided by the Construction Co., 887 F.2d 149 (8th Cir. criminal and civil penalty authority) Commission. 1989); Director O. W.P. v. Peabody Coal continue to be applicable and, as part of A more detailed discussion of the Co., 554 F.2d 310 (7th Cir. 1977). The those mechanisms, the Commission's model rules' provisions is found in the Commission believes that the latter Office of Investigations will continue to promulgations of several of the agencies situation applies here. be responsible for conducting that adopted them earlier, including The position taken by the Commission investigations of violations by licensees those of the Departments of Justice (53 carries out the important remedial and ot.her regulated entities, including FR 4034; February 11, 1988 and 53 FR purpose of both the Program Fraud Civil false statements by licensees. The 11645; April 8, 1988); Health and Human Remedies Act and the Inspector General CommiSBion believes that the continued Services (52 FR 27423; July 21, 1987 and Act. Both Acts were passed by Congress use of the existing Atomic Energy Act 53 FR 11656, April 8, 1988); and because of evidence of widespread enforcement mechanism and the Office Transportation (52 FR 36988; October 2, waste, fraud and abuse occurring in the of Investigations for this purpose is 1987 and 53 FR 880, January 14, 1988). operations of certain agencies. See S. consistent with Congressional intent. Anyone desiring further explanation of Rep. 99-212 at 2-8; S. Rep. 95-1071 at 4- The Office of Investigations was at one the model rules is referred to the cited 5. Congress determined that these time included for transfer to the NRC's references. agencies needed independent officials- Inspector General in the bill that Inspectors General-to ferret out such became the Inspector General Act Public Comment and Agency Response waste, fraud and abuse and established Amendments, S. 908. However, that These regulations were published offices in the agencies concerned by provision was later deleted from the bill earlier for public comment on September enactment of the Inspector General Act. because of a concern that the 25, 1990 (55 FR 39158). The only Later, as a separate matter, Congress Commission would lose the ability to set comments received on time were from saw the need to confer additional priorities in the interest of public health the law firm Winston & Strawn. remedial authority not otherwise and safety mnd direct investigations of Additional comments were later available to those agencies to help them licensee wrongdoing if the Office of received from the Houston Lighting and combat fraud and abuse. It did so Investigations were made part of the Power Company (HL&P). The comments through the Program Fraud Civil Inspector General's Office. and our response are discussed below. Remedies Act by requiring CongreSBional Record S. 417 (February Winston & Strawn's comments relate investigations under that Act to be 2, 1988). License/regulatory violations to its concern that the regulations can be conducted by the agency's Inspector often have significant public health and read to establish an additional, and in General and by conferring civil penalty safety consequences and the 13-SC-2

PART 13

• STATEMENTS OF CONSIDERATION Commission's ability to direct and to consult with the Executive Director "statement" and that it is unclear control its own investigations, to enable for Opera tioris to determine the most whether the term "benefits" is intended it to take immediate corrective action to effective approach and sanction. The to have different meanings in other protect the public health and safety, is Commission expects that in these types contexts.

critical to the carrying out of its of cases, the Atomic Energy Act will The Commission disagrees with responsibilities. normally provide the more appropriate HL&P's suggestion that the breadth of In addition to being the investigation sanction but it recognizes that, in some the definitions of those terms requires a official under the Program Fraud Civil instances, the sanctions provided by the limiting provision as suggested above. Remedies Act, the Inspector General has Program Fraud Civil Remedies Act might The Commission believes that HL&P broad, independent authority under the be useful. concern that the definitions will be Inspector General Act, as amended, to Nonetheless, any recommendation by misapplied is unwarranted. The conduct audits relating to the efficiency the Inspector General needs to be definitions of "claim" and "statement" of the programs and operations of the considered and evaluated on its merits. are those of the Act itself. The agency and investigations relating to Where the Inspector General Commission has no cause to believe that wrongdoing within the agency and recommends action under the Program it will apply the regulations in a manner agency programs. In carrying out these Fraud Civil Remedies Act, the agency inconsistent with Congressional duties, the lnspec.tor General may expects to weigh the Inspector General's purpose. _ identify a particular situation involving recommendation against other available With respect to the term "benefit", misconduct by a licen*see or other remedies, including those under the HL&P is correct that the definition regulated party. While those actions of Atomic Energy Act and regulations applies only in the context of the term the Inspector General are not thereunder, and pursue that course of "statement". The definition is that considered a part of the Commission's action that will best serve the contained in the model rules. It was normal licensee/regulatory enforcement government's interest. The rule proposed included es part of those rules to make mechanism, the Inspector General may earlier has been changed at § 13.4 to clear that unlike the statutory definition uncover violations that may subject the provide for coordination to the extent of claim in which the term "benefit" is a person to enforcement action under the possible between the Inspector General subclass of money, it is not so limited in Atomic Energy Act as well as civil and the Executive Director for the context of the term "statement".

• penalties under the Program Fraud Civil Operations in cases involving licensees, HL&P third comment relates to the Remedies Act at least to the extent that and, if agreement is not reached, to except clause in§ 13.3 (a) and (b) of the a fraudulent claim or statement is made allow the Commission to decide within regulations. HL&P suggests that the to the NRC with respect to matters its authority among various possible clause be omitted from the paragraphs associated with property, services and remedies in licensee false statement as unnecessary. Otherwise, it suggests benefits in the context of claims for cases on that remedial action or actions that the word "no" be deleted from

                                                                                        § 13.3(c) which states "no proof of money and statements related to such          which its believes best serve its money-type matters, contracts, loans or       enforcement program. Section 13.4(b)      specific intent is required to establish has been revised to provide for such      liability under this section." The similar benefits. Thus, false statements coordination and § 13.4(c) has been       Commission agrees that the except unrelated to such money claims                                                          clauses are not necessary and has ordinarily would not be deemed to come        revised to provide that the investigating official may defer or postpone initiating omitted them from § 13.3 (a) and (b).

within the scope of the Program Fraud For its final comment, HL&P suggests Civil Remedies Act but rather would be an investigation or completing a report that because of the civil penalty and matters to be addressed in accordance or referral to the reviewing official to multiple damage aspects of the remedies with the provisions of the Atomic avoid interference not only with a provided by the Act, the standard of Energy Act and the remedies, both civil criminal investigation or prosecution proof for a finding of liability in and criminal, provided by it. but, as well, with other enforcement § 13.30(b) should be changed from Accordingly, investigations regarding action by the Commission. "preponderance of the evidence" to false statements unrelated to money- As for the comments of HL&P, the "clear and convincing" evidence. The type matters would be undertaken by Commission finds that except for minor Commission declines to accept the the Commission's Office of editorial changes related to HL&P's third suggestion. The "preponderance of the Investigations and any ensuing of four comments discussed seriatim evidence" standard is that contained in enforcement action would be pursued below, no change in the proposed rule is the model rules. Its adoption is also under the NRC's traditional enforcement warranted. HL&P's first two comments consistent with Congressional intent. As program and policy. It is expected that pertain to the definition of the terms stated in the cognizant Senate allegations or other information "benefit", "claim", and "statement" in Committee Report on the bill that concerning false statements unrelated to § 13.2. It suggests that because the became the Act "the Committee agrees money claims that are brought to the definition for each of those terms is . . . that 'preponderance of the Inspector General would ordinarily be extremely broad, a limiting provision evidence' is the proper standard for the referred to the Office of Investigations should be added to preclude their Program Fraud proceedings." S. Rep. 99-for appropriate action. application to all communications by a 212 at 16. With respect to the foregoing, it is licensee to the agency in connection recognized that in most cases the with the licensee's obligations under Environmental Impact: Categorical Atomic Energy Act may provide for various specified regulations. As Exclusion more effective sanctions, e.g., orders and claimed by HL&P, without this limiting The NRC has determined that this rule higher civil penalties, and a simpler provision, the definitions might result in is the type of action described in process for imposition of such penalties. misapplication of Congressional intent. categorical exclusion 10 CFR 51.22(c)(1). Therefore, the regulation provides for In addition, with respect lo the term Therefore, neither an environmental the Inspector General. in making his "benefit", HL&P claims that the impact statement nor an environmental determination whether to proceed under definition appears to be limited to its assessment has been prepared for this the Program Fraud Civil Remedies Act, use in the context of the term rule. 13-SC-3

PART 13

• STATEMENTS OF CONSIDERATION Paperwork Reduction Act Statement the person subject to the order would This final rule contains no information have a right to a hearing in accordance collection requirements and therefore is with the regulations.

not subject to the requirements of the Backfit Analysis Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.]. The NRC has determined that the backfit rule, 10 CFR 50.109, does not Regulatory Analysis apply to this rule, and therefore, that a The Program Freud Civil Remedies backfit analysis is not required for this Act of 1986 (Pub. L. 99-509, 31 U.S.C. rule, because these amendments do not 3801-3812] established an involve any provisions which would administrative remedy for false claims impose backfits as defined in 10 CFR or statements submitted to various 50.109(a}(1J. agencies. Under the Act, anyone who List of Subjects in 10 CFR Part 13 knowingly submits a false, fictitious, or fraudulent claim to any of these Claims, Fraud, Organization and agencies is liable for up to a $5,000 function (government agencies), penalty and an assessment of double Penalties. damages. Each affected agency is required to issue implementing regulations governing the investigation of such claims and their adjudication by the agency. Although the Act did not 61 FR 53554 apply to the NRC at the time of its Published 10/11/96 enactment, its provisions became Effective 11 /12/96 applicable to the NRC upon later enactment of the Inspector General Act Adjustment of Civil Monetary Penalties Amendments, Public Law 100-504, for Inflation October 18, 1988, The final rule carries out the See Part 2 Statements of Consideration requirements of the subject Act. It essentially adopts the model rules prepared under the auspices of the President's Council on Integrity and Efficiency. This is in keeping with the 61 FR 56623 expectation of the Senate Governmental Published 11/4/96 Affairs Committee, expressed in its report on the Act, that the agency Adjustment of Civil Monetary Penalties regulations throughout the Government for Inflation; Correction would be substantively uniform, except as necessary to meet the specific needs See Part 2 Statements of Consideration of a particular agency or program (S. Rep. No. 99-212, 99th Cong., 1st Sess. 12 (1985)). Regulatory Flexibility Certification As required by the Regulatory-Flexibility Act of19BO (5 U.S.C. 605(b)), the Commission certifies that this rule does not have a significant economic impact on a substantial number of small entities. The rule establishes the procedural mechanism for investigating and adjudicating allegations of false claims or statements made against affected agencies. The rule, by itself, does not impose any obligations on entities including any regulated entities that may fall within the definition of "small entities" as set forth in section 601(3) of the Regulatory Flexibility Act, or within the definition of "small business" as found in Section 3 of the Small Business Act, 15 U.S.C. 632, or within the Small Business Size Standards found in 13 CFR part 121. These obligations would not be created until an order is issued, at which time 13-SC-4

UNITED STATES NUCLEAR REGULATORY COMMISSION RULES and REGULATIONS TITLE 10*.CHAPTER 1, CODE OF FEDERAL REGULATIONS - ENERGY

   ~                                         DEBT COLLECTION PROCEDURES.
   ~

STATEMENTS OF CONSIDERATION 52 FR31601 the Controller, U.S. Nuclear Regulatory transportation and relocation expenses, .Published B/21/87 Commission, Washington, DC 20555, and allowances. Effactive 8/19/87 telephone (301) 492-7225. A new paragraph (b)(2) is added to SUPPLEMENTARY INFORMATION: On in.dicate that civil monetary penalties Statement or Organization and General February 22, 1982 [47 FR 7615), the NRC imposed under 10 CFR 2.205 ar.e subject Information published a final rule concerning debt to special statutory and administrative SN Part 1 St11tem1111111 of Consideration collection procedures. Since then, the . procedures. Debt Collection Act of 1982 (Pub. L. 97-

• 53'i=i:1 &137 365) was enacted on October 25, 1982, Section 15.2 Definitions Published 3/1/88 Effective 3/1/88 which revised the Federal Claims This new section is added to provide Collection Act of 1966 (31 U.S.C. 3701 et definitions for the terms "administrative Relocation of Office of Nuclear seq.). On March 9, 1984 (49 FR 8889), offset," "claim and debt," "delinquent,"

.Reactor Regulation                              GAO and DOJ issued a final rule                "license," and "payment in full" as they See Part 19 Statements of Consideration         amending the Federal Claims Collection         are used in this part and 4 CFR parts Standards as set out in 4 CFR parts 101-       101-105.

• 53FR43419 Publlshed 10/27/88 105. On October 7, 1988 (53 FR 39480), Section 15.3 Communications Effective 10/27/88 the NRC published a proposed rule based on the requirements contained in This section is revised by correcting
• Relocation of NRO's Public Document the Federal Claims Collection the Commission's address for Room; Other Minor Nomenclature Standards. The public was invited to communications concerning the Changes submit written comments on the regulations in 10 CFR part 15.

                                                 -proposed rule by November 21, 1988,            Section 15.5 Claims that are Covered See Part 1 Statements of Consideration            and no comments were received.

54 FR53312 The revision to 10 CFR part 15 This section is revised to note that the Publlshed 12/28/89. establishes procedures for the NRC to provisions of 10 CFR part 15 which Effective 12/28/89 collect, compromise, or terminate apply to civil penalties shall be specified collection action on claims owed to the in 10 CFR 2.205, to note that the Statement of O,panization and General United States Government arising from provisions of 10 CFR part 15 do not Information; Minor Amendments activities under NRC jurisdiction. The apply either to claims between Federal revision implements the Federal Claims agencies, or to claims once they become See Part 1 Statements of Consideration Collection Act as amended by the Debt subject to the salary offset provisions of Collection Act and supplements the 5 U.S.C. 5514, and to explicitly provide 55 FR32375 amendments to the Federal Claims that fees imposed under 10 CFR parts Published 8/9/90 Collection Standards. This revision, 170 and 171 are covered. Effective 9/10/90 however, does not implement the salary offset provisions of the Debt Collection Section 15.7 Monetary Limitations on 10 CFR Part 15 Act. Those provisions will be NRC's Authority implemented through the establishment The statutory citation in this section is RIN 315D-AC87 of 10 CFR part 16 which is currently corrected to read 31 U.S.C. 3711(b). Debt Collection Procedures under development by the Commission. Paragraph (b) is modified to include In addition this rulemaking does not "penalties, and administrative costs" AGENCY: Nuclear Regulatory address the collection of civil penalties Commission. with the exclusion of interest from the under 10 CFR 2.205. NRC is considering $20,000 limitation on the NRC's ACTION: Final rule. a separate rulemaking action to specify compromise authority. those provisions of 10 CFR part15 which

SUMMARY

The Nuclear Regulatory apply to civil penalties as_sessed by NRC Section 15.9 Omissions Not a Defense Commission (NRC) is amending its under 10 CFR 2.205. **

regulations concerning the procedures This section is modified to include the that the NRC uses to collect the debts Section by Section Analysis citation for the Federal Claims which are owed to it. The amendment is Section 15.1 Application Collection Standards. necessary to conform NRC regulations This section is revised to make it clear to the amended procedures contained in Section 15.13 Subdivision of Claims that part 15 prescribes NRC procedures the Federal Claims Collection Standards for collecting, compromising, A cross reference to the statutory and issued by the General Accounting Office terminating, and referring claims to regulatory authority for this section is (GAO) and the Department of Justice GAO and DOJ, and to conform to Public added. (DOJ). This action is intended to allow Law 99-224. the NRC to further improve its collection Section 15.21 Written Demands for Paragraph (b)(1) is modified to Payment of debts due the United States. conform to the provisions of Public Law EFFECTIVE DATE: September 10, 1990. 99-224, dated December 28, 1985, which Paragraph (a)(1) is modified to include FOR FURTHER INFORMATION CONTACT: amended 5 U.S.C. 5584, 10 U.S.C. 2774 notice to the debtors of their right to Diane B. Dandois, Chief, License Fee and 32 U.S.C. 716 by authorizing waivers 1md Debt Collection Branch, Office of seek review within the Agency. of erroneous pay'!lents of travel, Paragraph (a)(4) is modified to indicate 15-SC-1

PART 15 STATEMENTS OF CONSIDERATION the date of mailing or hand delivery as on the use of administrative offset in the Section 15.43 Reasons for Compromising the date on which payment is to be collection of debts owed the NRC. a Claim made under normal circumstances, Section 15.35 Payments This section is modified to bring it consistent with 4 CFR part 102. into conformity with 4 CFR part 103. Paragraph.(al(5) is modified to include Language is added to this section to clarify that charges for interest, Paragraph (c) is changed to indicate that penalties and administrative costs of collection costs will be expended in collection in the demand for payment. penalties, and administrative costs will be assessed on delinquent payments accordance with 4 CFR 103.4 rather than Minor editorial changes are made to paid in full in one lump sum. In addition, as currently stated. Paragraph [d) is paragraph [b), including the addition of language is added to explain how an divided to set out separately in a new possible reporting of delinquent debts to installment agreement will be instituted paragraph (e) the requirement for an consumer reporting agencies. and applied to a debt. The significant enforceable agreement of installment additions are a provision for accelerated payments under a compromise of a Section 15.25 Personal Interviews claim. payment in the event the debtor defaults This section is modified to make on an installment agreement and an Section 15.45 Restrictions on the personal interviews discretionary on the indication that the NRC will comply Compromise of a Claim part of the NRC under paragraph (a) with the debtor's instructions in the while maintaining a requirement to *application of payments when more The opening sentence of this section is grant an interview to the debtor, if than one debt is involved. If the debtor changed for clarification purposes only. requested, under paragraph [b). does not, however, designate the Section 15.51 When Collection Action application of payments, the NRC will Section 15.26 Use of Consumer May Be Suspended or Terminated apply the payments in the best interest Reporting Agencies of the United States. This section is modified to indicate A new section is added to provide for the exclusion of interest, penalties, and the reporting of delinquent debts to Section 15.37 Interest, Penalties, and Administrative Costs administrative costs from the monetary consumer reporting agencies, notifying limitation on when the N~C may debtors of these actions, reporting debt This section is changed substantially suspend or terminate collection action. status changes to debtors, and limiting by revising its title and adding the the information which the NRC may following new paragraphs: Section 15.61 Prompt Referral provide to consumer reporting agencies. Paragraph (e) provides that the Paragraph (a) is modified to delete the Section 15.29 Suspension or Revocation interest rate on a debt will remain fixed

• reference to a priva le collection agency of License except under specified circumstances. which is now to be addressed in the Paragraph [f) provides that the NRC new § 15.32 discussed above. A one-This section is modified to correspond will assess against the debtor the costs more closely to the terminology used in year referral requirement is codified for of administratively handling a NRC action after final determination of 4 CFR parts 101-105. delinquent debt. the fact and the amount owed to the Section 15.31 Disputed Debts Paragraph [g) codifies the current NRC.

This section is modified to correspond NRC practice of assessing a penalty A new paragraph (b) is added to more closely to the terminology used in charge in the amount of 6 percent per provide for NRC referral to GAO of 4 CFR parts 101-105. annum on a debt that is delinquent for questions concerning acceptance of a more than 90 days. This charge accrues Section 15.32 Contracting for Collection proposed compromise, suspension, or from the date that the debt became Services termination of collection actions in delinquent. Thus, both interest and penalties are calculated from the same order to obtain GAO's advice on the This new section is added to provide matter in question. The current for NRC action to collect a debt by initial date. paragraph [b) is redesignated as means of a commercial collection Paragraph [h) provides that payrrients paragraph (c). agency, as authorized by 4 CFR 102.6. will be applied first to outstanding With the inclusion of this new section, penalty and administrative charges, A new paragraph (d) is added to § 15.63 is removed from subpart E of this then to interest, and finally to the reflect the fact that once a referral has part. principal. been made to GAO or DOJ, the NRC will Paragraph [i) codifies current NRC refrain from any contact with the debtor Section 15.33 Collection by and will immediately advise GAO or Administrative Offset practice of waiving interest for debts paid within 30 days of the due date. DOJ of any payments made by the This section is modified to disclose Paragraph (j) codifies current NRC debtor. the 10 year limitation on the NRC's practice of waiving interest during the authority to initiate an administrative Section 15.63 Referral of a Claim to period a disputed debt is under Private Agencies for Collection offset. If the payment of fees to the NRC investigation. is deferred, the ten years will run from Paragraph (k) codifies other This section is deleted both because the end of the deferral period or any circumstances under which interest, of the new § 15.32 which addresses other period the NRC subsequently penalties, and administrative costs may these actions, and because these establishes. be waived. collection actions are not a referral in Paragraphs (b) and [c) of this section the truest sense, but rather reflect a are changed to make it consistent with Section 15.38 Use of Credit Reports different form of collection action by the the provisions in 4 CFR 102.2, 102.3, and A new section is added to allow NRC NRC using other means. 102.4, and 5 U.S.C. 5514. Provisions are to institute a credit investigation of a added to establish the debtor's debtor in order to make appropriate Section 15.67 Referral to the Department procedural rights, to provide for seeking determinations regarding the collection ofJustice offset from other Government agencies of a claim. A new paragraph (a) is added to when they have funds due the debtor, to provide for NRC acceptance of a Section 15.41 When a Claim May Be indicate the threshold for determining to Compromised whom the NRC will refer a claim for repayment agreement in lieu of an offset, and to establish other limitations enforced collection, i.e., DOJ or the The opening sentence of this section is appropriate U.S. Attorney. The current changed for clarification purposes only. paragraphs (a) and [b) are redesignated 15:SC-2

PART 15 STATEMENTS OF CONSIDERATION as paragraphs [b) and [c), respectively. rule because these amendments do not A new paragraph [d) is added to involve any provisions which would indicate that the NRC must make its impose backfits as defined in 10 CFR referrals in accordance with the 50.109(a)(l). guidance in 4 CFR 105.2, and that pertinent evidence will be preserved. List of Subjects in 10 CFR Part 15 Finding or No Significant Environmental Administrative practice and Impact: Availability procedure, Debt collection. The Commission has determined For the reasons set out in the under the National Environmental Policy preamble and under the authority of the Act of 1969, as amended, and the Atomic Energy Act of 1954, as amended, Commission's regulations in subpart A the Energy Reorganization Act of 1974, of 10 CFR part 51, that this rule is not a as amended, the Federal Claims major Federal action significantly Collection Act of 1966, as amended, and affecting the quality of the human 5 U.S.C. 552 and 553, the NRC is environment and therefore an adopting the following amendments to environmental statement is not required. 10 CFR part 15. Amending the procedures that the NRC uses to collect debts will have no radiological environmental impact 56 FR 51829 offsite and no impact on occupational Published 10/16/91 radiation exposure onsite. The Effective 11 /15/91 amendment does not affect nonradiological ~)ant effluents and has

• Salary Offset Procedures for no other environmental impact. The Collecting Debts Owed by Federal environmental assessment and finding Employees to the Federal Government of no significant impact, on which this determination is based, are available for See Part 16 Statements of inspection al the NRC Public Document Room, 2120 L Street, NW. (Lower Level) Consideration Washington, DC.

Paperwork Reduction Act Statement 57 FR4152 This final rule contains no information Published 2/4/92 collection requirements and therefore is Effective 2/4/92 not subject to the requirements of the Paperwork Reduction Act of 1980 (44 Revisions to Procedures to Issue U.S.C. 3501 el seq.). Orders Regulatory Analysis See Part 2 Statements of This final rule will bring NRC debt Consideration collection procedures into conformance with current statutory and regulatory guidance and requirements and, therefore, does not have significant impact on state and local governments and geographical regions, health, safety, and the environment: nor does it represent substantial costs to licensees, the NRC, or other Federal agencies. This constitutes the regulatory analysis for this rule. Regulatory Flexibility Certification In accordance with the Regulatory Flexibility Act, 5 U.s.c: 605(b], the Commission certifies that this rule does not have a significant economic impact on a substantial number of small entities. Any impact on a small entity which might occur will result solely from the acts or omissions of the small entity concerned because or its failure to pay a valid debt to the NRC. As a result, a regulatory flexibility analysis has not been prepared. Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this rule, and therefore, that a backfit analysis is not required for this 15-SC-3

UNITED STATES NUCLEAR REGULATORY COMMISSION RULES and REGULATIONS TITLE 10. CHAPTER 1. CODE OF FEDERAL REGULATIONS-ENERGY fPAifl SALARY OFFSET PROCEDURES FOR COLLECTING DEBTS OWED BY FEDERAL EMPLOYEES TO THE L!!_J FEDERAL GOVERNMENT STATEMENTS OF CONSIDERATION 56 FR 51829 Published 10/16/91 Effective 11/15/91 10 CFR Parts 15 and 16 RIN 3150-AD44 The Office of Personnel Management Finding of No Significant Environmental (OPMJ regulations governing the salary Impact Salary Offset Procedure* for offset program establish certain Collecting Debts Owed by Federal minimum standards and procedures that The Commission has determined, Employees to the Federal Government must be incorporated into each agency's under the National Environmental Policy salary offset regulations (5 CFR Act of 1969, as amended, and the AGENCY: Nuclear Regulatory 550.1104] and require each agency to Commission's regulations in subpart A Commission. submit proposed regulations to OPM for of 10 CFR part 51, that this rule is not a ACTION: Final rule. review and approval prior to their major Federal action significantly

SUMMARY

The Nuclear Regulatory becoming final rules (5 CFR 550.1105]. affecting the quality of the human Commission (NRC) is establishing The NRC forwarded a copy of its environment and therefore an procedures to collect certain debts owed proposed rule to OPM in order to environmental statement is not required.

by Federal employees to the NRC and comply with 5 CFR 550.1105. OPM Amending the procedures that the NRC other Federal agencies by deduction(s) approved NRC's proposed rule on salary uses to collect debts which are owed to from their pay. This final rule, which offset. The NRC published the proposed it and other Federal agencies by Federal establishes a new 10 CFR part 16, is rule for public comment on September employees through salary offset will necessary to conform NRC regulations 26, 1990 (55 FR 39285]. No comments have no radiological environmental to the Debt Collection Act of 1982 which were received. impact offsite and no impact on requires each agency to establish a Therefore, the NRC is establishing a occupational radiation exposure onsite. salary offset program for the collection new part in 10 CFR Ch. I (part 16] that The rule does not affect nonradiological of these debts. This rule also amends would contain the provisions necessary plant effluents and has no other NRC's debt collection procedures to to meet the requirements of the Debt environmental impact. specify that these salary offset Collection Act of 1982. The new 10 CFR The environmental assessment and provisions apply to the collection of part 16 provides procedures for the NRC finding of no significant impact, on certain debts owed by Federal to collect debts owed to the Federal which this determination is based, are employees to the NRC and other Government by administrative offset available for inspection at the NRC agencies. from a Federal employee's salary Public Document Room, 2120 L Street EFFECTIVE DATE: November 15, 1991. without his or her consent. This rule (Lower Level], NW., Washington, DC. FOR FURTHER INFORMATION CONTACT: applies to all Federal employees who Paperwork Reduction Act Statement Diane B. Dandois, Chief, License Fee owe debts to the NRC and to current and Debt Collection Branch, Division of employees of the NRC who owe debts to This final rule contains no information Accounting and Finance, Office of the other Federal agencies. collection requirements and therefore is Controller, U.S. Nuclear Regulatory lrt addition, this final rule is making not subject to the requirements of the Commission, Washington, DC 20555, conforming amendments to 10 CFR part Paperwork Reduction Act of 1980 (44 telephone (301) 492-7225. 15, Debt Collection Procedures. These U.S.C. 3501 et seq.]. SUPPLEMENTARY INFORMATION: The Debt amendments are necessary to specify Regulatory Analysis Collection Act of 1982 (Pub. L 97-365] that the salary offset provisions of 10 requires each agency to establish a CFR part 16 apply to the collection of This final rule will bring NRC salary offset program for the collection certain debts owed by Federal procedures for collecting debts owed it of debts owed by Federal employees to employees to the NRC and other and other Federal agencies by Federal the Federal Government. agencies. employees into conformance with 16-SC-1

PART 16

• STATEMENTS OF CONSIDERATION current statutory and regulatory guidance and requirements and, as such, does not have significant impact on state and local governments and geographical regions, health, safety, and the environment; nor does it represent substantial costs to licensees, the NRC, or other Federal agencies. This constitutes the regulatory analysis for this rule.

Regulatory Flexibility Certification In accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Commission certifies that this rule does not have a significant economic impact on a substantial number of small entities since it does not cover debts owed the NRC by small entities. As a result, a regulatory flexibility analysis has not been prepared. Backfit Analysis The Commission has determined that the backfit rule, 10 CFR 50.109, does not apply to this rule and, therefore, that a backfit analysis is not required for this final rule because it does not involve any provisions which would impose backfits as defined in 10 CFR 50.109(a)(1). List of Subjects 10 CFR Part 15 Administrative practice and procedure, Debt collection procedure. 10 CFR Part 16 Administrative practice and procedure, Debt collection. For the reasons set out in the preamble and under authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; the Debt Collection Act of 1982, as amended; the Federal Claims Collection Act of 1966, as amended; 5 CFR 550.1101-1108, subpart K; and 5 U.S.C. 552 and 553, the NRC is adopting 10 CFR part 16 and the following amendments to 10 CFR part 15. 16-SC-2

UNITED STATES NUCLEAR REGULATORY COMMISSION RULES and REGULATIONS TITLE 10. CHAPTER 1, CODE OF FEDERAL REGULATIONS-ENERGY NOTICES, INSTRUCTIONS, AND REPORTS TO WORKERS: INSPECTION AND INVESTIGATIONS STATEMENTS OF CONSIDERATION 52 FR 8225 *Rockvili'e*.Marvland. These amendments requirements, Sex discrimination. Published 3/17/87 indicate* this relocation by revising1he , . Effective 7 /14/87 ,10 CFR Part 20

• address for -the personal delivery of communications.and reports to. the Byproduct material. Licensed Licenses and Radiation Safety Requirements for Well Logging
• NRC's Document Control Desk; material, Nuclear matedals, Nuclear

                                                    *, Because these amendments deilF * -

• power plants and re.actors, Occupational See Part 39 Statements of Consideration solely with the relocation,cif agency ** ,.... safety and health, Packaging and personnel, the notice*and comment*- *** containers, Penalty, Radiation
• 52 FR 31601 .protection.-Reporting and recordkeeping

*Published 8/21/87                               provisions of the Administrative Effective 8/19/87                               Procedure Act do not apply under 5               .requirements, Special nuclear material, U.S.C. 553(bl(A).-These*amendmerits are           Source material. Waste treatment and Statement of Organization and General           effective. upon publication in the 'Federal       disposaL      * *

• Information Register;-*Good cause exist!! to-dispense
• 10 CFR Port 21 SH Part 1 St11t11ment1 ~ Consideration .with the usual 30-day delay in the .. .

Nuclear power plants and reactors. effective-date-. because these 53 FR 6137 Penalty, Radiation protection, Reporting . amendments are of a minor and*.*: Published 3/1/88 and recordkeeping re~uirements. Effective 3/1/88 adm~istrative:nature,*dealing wUh the rel~cation *or agency personnel. . * * *

• 10 CFR Parl 50
• 10 CFR Parts 4, 15, 19, 20,-21, 50, 53, Em. ironmcntal lmpau: Categoric;al Antitrust, Classified.information, Fire 55, 73, 75, 81, 140,.150, and 170 Exclusion protection. Incorporation by reference.

Intergovernmental relations, Nuclear Relocation of Office of Nuclear The ~RC has determined that this power plants and ~ctors, Penalty, Reactor Regulation final rule is the type of action described Radiation protection,-Reactor siting in categorical exclusion 10 CFR criteria. Reporting and recordkeeping

*AGENCY:     Nuclear Regulator)*                  51.22lc)(2]. Therefore, neither an               requirements.

Commission. environmental impact stalcment nor an

                                                . environmental assessment has been             . 10.CFR Part 53 ACTION: Final rule.

• prepared for* this final rule.
• Administrative practice and

SUMMARY

The Nuclear Regulato~* Paperwork Reducti~n Act Statement procedure. High-level waste. *Nuclear Commission (NRC) is amending its materials, Nuclear.power plants_.and This final rule contains no information reactors. Reporti!JB and recordkeeping regulations to indicate that its Office of collection requirements and therefore is Nuclear Reactor Regulation (NRR) has not subject to the requirements of the requirements, Sven! f;el. \,\iast<'

relocated at the agency's new office Paperwork Reductior. Aci of 1980 (44 treatment and disposal. building located at One White Flint U.S.C. 3501 et seq.).

 *North, Rockville, Mar\'land. These                                                               .W Cf'R Part s.r; amendments are being made to inform              List of Subjects                                   Manpower training programs, Nuclear NRC licensees and members of the                 10CFRPart4                                       power plants and reactors. Pem1!ti*.

public of this relocation. . . Reporting and rewrd~.eP.pin!!

• Administrative practice and EFFECTIVE DATE: March 1, 1988. procedure. Blind, Buildings, Civil righls.
• requirements.

FOR FURTHER INFORMATION CONT~CT:

• Employment. Equal employment 10 CFR Part 73 Donnie H. Grimsley, Director. Division opportunity. Federal aid programs, of Rules and Records. Office of Grant programs, Handicapped, Loan Hazardous materials-transportation, Administration and Resources programs, Reporting and recordkeeping Incorporation b:v reference. Nuclear Managertient,U.S. Nuclear Regulatory requirements, Sex discrimination. materials. Nuclear power plant:; and

  *commission.Washington; DC 20555,                                                                 reactors. Penalty. Reporting and 10 CFR Part 15                                   recordkeeping requiremenis. Security Telephone: 301-492-7211.

Administrative practice and measures. SUPPLEMENTARY INFORMATION: On . procedure. Debt collection. January 29. 1988 (53 FR 2660), the NRC '10 CFR Part 75 published in the Federal Register a 10 CFR Part 19 Nuclear materials. Nuclear power gener.al notice announcing that as of . Environmental prolection, Nuclear plants and reactors, Reporting and February 1,..1988, the Office of NRR . materials, Nuclear power plants and recordkeeping requirements. Securitv be . would relocated at the agency's*new reactors. Occupational safety and . measures, Treaties.

• office buildinii located at One White health. Penalty, Radiation protection.
• Flint North. 11555 Rockville Pike, Reporting and recordkeeping 19-SC-1

PART 19 STATEMENTS OF CONSIDERATION multiple interests and there is a contractors. The rule does not apply, W CFR Part 81 reasonable basis to believe.that such however, to subpoenas issued pursuant Administrative practice and representation will prejudice, impede, or to 10 CFR 2.720. Although in the procedure, Inventions and patents. impair the integrity of the inquiry. These discussion that follows we frequently amendments are designed to ensure the use the terms "licensee" or "licensee's 10 CFR Part 140 integrity of the investigative and counsel," the discussion is equally Extraordinarv nuclear m:currence, inspection process. These amendments applicable to "non-licensees" whose Insurance, lntergo\'ernmental relations. are also intended to serve as notice of activities fall within the jurisdiction of Nuclear materials, Nuclear power plants the responsibilities of the NRC and the the Commission. Similarly, while much and reactors. Penalty, Reporting and rights of individual witnesses, licensees

• of the discussion is focused on and attorneys when exclusion authority interviews conducted under subpoena recordkeeping requirements.

is exercised. by the NRC's Office of Investigations, 10 CFR Part 150 EFFECTIVE DATE: February 5, 1990. the rule also applies to NRC inspections Hazardous materials-transportation. FOR FURTHER INFORMATION CONTACT: and investigations conducted under Intergovernmental relations, Nuclear Carolyn F. Evans, Attorney, Office of the subpoena by other NRC officials. materials, Penalty, Reporting and General Counsel, telephone (301) 492- The Commission will first address the recordkeeping requirements, Security 1632, U.S. Nuclear Regulatory remarks of some commenters regarding measures Source material. Special Commission, Washington, DC 20555. the necessity for the exclusion of nuclear material. SUPPLEMENTARY INFORMATION: counsel provisions of the rule. The I. Background Commission is extremely sensitive to 10 CFR Part 170 the commenters' concerns and Byproduct material. Nuclear On November 14, 1988 (53 FR 45768), reservations in this regard, for we materials, Nuclea_r power plants and the Nuclear Regulatory Commission recognize that a decision to exclude an reactors, Penalty, Source material. published in the Federal Register individual's chosen counsel is an Special nuclear material. proposed amendments to its regulations extraordinary action. It is still the found at 10 CF.R part 19. The Commission's view, however, that a rule For the reasons set out in the preamble and untier the authority of the amendments provided for the is needed. This is so for several reasons. Atomic Energy Act of 1954, as amended. sequestration of witnesses [and their One means by which the Commission the Energy Reorganization Act of 1974, counsel, if any) compelled to appear satisfies its statutory responsibility of as amended. and 5 U.S.C. 553, the NRC under subpoena before NRC ensuring the public health and safety is is adopting the following amendments to representatives. The amendments also through investigation of unsafe practices 10 CFR Parts 4. 15, 19, 20, 21, 50. 53, 55. provided for the exclusion of counsel and violations of the Atomic Energy Act 73, 75, 81, 140, 150, and 170. representing multiple interests (e.g .. and NRC regulations. NRC investigators licensees and employees) whenever the must often interview licensees, their 53 FR 31651 NRC official conducting the inquiry had employees, and other individuals having Published 8/19/88 a reasonable basis to believe that possible knowledge of matters under Effective 9/19/88 counsel's representation of these investigation which are of regulatory interests would impair or impede the interest to the NRC. When interviewing Ucensing Requirements for the particular investigation or inspection. Independent Storage of Spent Nuclear the employees of a licensee, Fuel and High-Level Radioactive On January 6, 1989, the NRC published investigating officials are especially Waste in the Federal Register a notice that sensitive to the need to provide these extended the original 60-day comment witnesses an atmosphere which See Part 72 Statements of Consideration period for an additional 30 days to

• encourages and promotes candor. This 53 FR 43419 February 9, 1989 (54 FR 427). may be especially true during an Published 10/27/88 During the 90-day comment period, investigation of a violation of the Effective 10/27/88 the Commission received 22 comments. Commission's regulations involving the Commenter& included utilities, law firms harassment or intimidation of Relocation of NRC's Public Document representing utilities, the Nuclear Utility employees for raising safety issues. The Room; Other Minor Nomenclature Management and Resources Council very.identification and correction of Changes (NUMARC), the Nuclear Information unsafe practices or regulatory violations and Resource Service and an individual. through an investigative or inspection See Part 1 Statements of Consideration All comments are available for process depends upon the willingness of 55 FR 243 inspection and copying in the agency's individuals having possible knowledge Published 1/4/90 Public Document Room, 2120 L Street, of such practices or violations to speak Effective 2/5/90 NW. (Lower Level), Washington, DC. openly to Commission officials.

10 CFR Part 19 The Commission has considered all In a limited number of cases, the comments and wishes to express its difficulties have arisen when licensee's RIN 3150-AD06 appreciation for the thoughtful views counsel or counsel retained by the expressed. In response to the comments, licensee has also represented witnesses Sequestration of Witnesses the rule has been revised to clarify the who are employees of the licensee Interviewed Under Subpoena/ meaning of the term "sequestration" during interviews. This multiple Exclusion of Attorneys and to identify more clearly the representation appears to have inhibited circumstances under which attorney the candor of these witnesses who, quite AGENCY: Nuclear Regulatory exclusion authority is to be exercised. naturally, have been hesitant to divulge Commission. The rule also includes additional information against the interests of their ACTION: Final rule. procedural safeguards to govern the employer in the presence of their exclusion process. employer's counsel or counsel retained

SUMMARY

The Nuclear Regulatory Before addressing the comments, a by the employer. For example, recently Commission ("NRC") is amending its brief explanation of the scope of the rule during the course of conducting an regulations to providt for the is warranted. As specified in revised 10 , investigation at an NRG-licensed sequestration of witnesses compelled by CFR 19.2, the rule applies to all facility, the investigator was approached subpoena to appear in connection with interviews under subpoena within the by an individual who had been .

NRC investigations or inspections. jurisdiction of the Nuclear Regulatory previously interviewed. This individual These amendments also provide for the Commission other than those which informed the investigator that during his exclusion of counsel for a subpoenaed focus on NRC employees or its interview he wanted to answer witness when that counsel represents 19-SC.2

PART 19, STATEMENTS OF CONSIDERATION questions in greater detail but felt best position initially to assess when the In the past, there have been only a uncomfortable about doing so with presence of licensee counsel or counsel limited number of investigations in licensee's counsel present. The result of retained by the licensee (particularly which the exclusion of a particular multiple representation in that case was counsel who expresses an intent to attorney representing multiple interests that the free flow of possible safety- inform the licensee of what has been would have been warranted. This related information to the NRC was said during interviews) will impede or suggests, and indeed it is the impeded and the overall effectiveness of impair the particular investigation or Commission's intent, that exercise of an NRC investigation was reduced. inspection. exclusion authority will be confined to The problem raised by multiple Some of the commenters contend that the most compelling cases. representation is brought into sharp the Commission's concern with focus when counsel representing an preventing an attorney from advising a A. General Comments-Sequestration employee states before an investigative licensee of what has been said during The majority of comments relate to interview of the employee that counsel interviews of employees is misplaced as the exclusion of counsel provisions of intends to tell the licensee everything there is nothing wrong with an attorney the rule. However, several commenters that is said during the interview, doing this. While in a formal sense there may be nothing ethically wrong with have raised concerns regarding the regardless of whether or not this may jeopardize the employee's interest. counsel's disclosing to a licensee client rule's sequestration provisions. The Contrary to the commenters' assertions what an employee client has said in an Commission's responses to these regarding a lack of factual support for interview, provided both clients have concerns are set forth below. the rule, and as the Commission pointed been advised in advance of counsel's 1. Sequestration Is Defined in an out in its statement accompanying the intent to disclose to the licensee Anomalous Manner proposed rule, there have been several everything the employee client says, the instances where a licensee's counsel Commission has sound reason for Several commenters have indicated representing multiple interests has concern about the potential effect of that the term "sequestration" is defined stated his or her intent to report such attorney behavior on in an anomalous or confusing manner. information obtained from an employee investigations. Moreover, protection and These commenter&, however, do not to the licensee. Such situations, directly nondisclosure of investigative indicate in what respect they are related to multiple representation, information are often necessary confused. The term is intended to have though limited in number, have the very elements of an ongoing probe so that its common meaning, which is the act of real potential for frustrating the those under investigation and other separating or isolating persons during objectives of the Commission's fact- prospective witnesses might not be the course of trial, but in this context, finding mission by chilling the candor of warned of what has been asked and agency interviews. Some of the the employee witness who knows, or at answered and so aidecl in thwarting the confusion may have arisen from the least believes, that, in the final analysis, inquiry. When the integrity of an NRC Commission's characterization of the act counsel's allegiance lies with the investigation, inspection or other inquiry of prohibiting counsel from attending the licensee, and that by providing depends on the licensee not being interviews of individuals as a information contrary to the interests of apprised of information relating to the sequestration. The proper term for the his or her employer, the employee nature, scope or focus of the particular act ofremoving counsel under the rule is stands to jeopardize his employment probe, counsel who advises the licensee actually "exclusion. The definitions interest. of what was asked and answered during have been revised in the final rule to By setting forth guidance and interviews of employee witnesses might clarify the meaning of terms. procedures in this area, the Commission impair or decrease the effectiveness of hopes to avoid the confusion which the particular investigation or 2. Implementation of the Rule Will occurred in the absence of a rule when inspection. These concerns are not Violate Witnesses' First Amendment multiple representation issues were theoretical. There have been several Rights resolved on an ad hoc basis. This rule instances in which concerns about Several commenters have expressed also serves to notify all affected persons counsel's disclosures to employers have concern that the provisions governing and entities of Commission policy in this impeded investigations. the sequestration of witnesses would area and sets forth the procedural A number of commenters contend also apparently bar discussions among mechanisms available to licensees, there is already a statutory and witnesses and attorneys and the witnesses in contravention of the First regulatory scheme in place to protect responsibilities of the NRC when against the concerns expressed by the Amendment protections of freedom of exclusion authority is exercised. As we Commission. These commenter& cite the speech and association. The stated previously in the notice of obstruction of justice statute, 18 U.S.C. Commission disagrees. The rule, which proposed rulemaking, the Commission is 1505, section 210 of the Energy is reasonably related to the legitimate not suggesting that the fact of multiple Reorganization Act, and 10 CFR 50.7 as fact-finding function of the NRC, neither representation alone can form the basis providing sufficient safeguards against by its terms nor in its intended for an exclusion decision. However, the concerns articulated in the rule. The application, effects a prohibition on the where the official conducting the inquiry Commission agrees that the statutory communications or associational rights concludes that an attorney's provisions cited by the commenters may of witnesses either before or after an representation of both the licensee and well protect against some of the interview. The rule is designed to its employees will impair the integrity of concerns that prompted this rule; discourage fabrication, inaccuracy and an NRC investigation or inspection, then however, these provisions are an collusion during the course of the exclusion may be warranted. The inadequate means for accomplishing an investigative interview, and no more investigating official who, in the final expeditious administrative remediation restricts an individual's First rule, is still required to consult with the of potential impairments to NRC Amendment rights than does Federal Office of the General Counsel before investigations and inspections, a major Rule of Evidence 615, the provision upon exercising exclusion authority is in the goal of the rule. which it is based. 19-SC-3

PART 19 STATEMENTS OF CONSIDERATION B. General Comments-Exclusion of criminal proceedings where it is most of a small nuclear bar and the fact that Counsel critical, see Wheat v. United States 486 many lawyers are unfamiliar with the U.S_, 108 S. Ct. 1892, 100 L. Ed. 2d often technical issues involved in

1. Rule Unnecessarily Infringes upon a 140 (1988), but also in the context Qf practice before the NRC. Sixth Witness' Right to Counsel of Choice administrative proceedings under the Amendment effective assistance of Virtually all of the commenters APA. See SEC v. Csapo, 533 F.2d 7 (D.C. counsel requirements are not expressed concem that implementation Cir. 1976). As discussed below, the necessarily applicable to NRC of the proposed rule would deprive Commission, in its final rule, has sought investigatory interviews. For one, there witnesses of the fundamental right to to make it clear that exclusion authority is a substantial difference between the counsel of choice as guaranteed by is to be confined within permissible rights of an accused in a criminal section B(a) of the Administrative limits. proceeding and the rights of a witness in Procedure Act (APA). 5 U.S.C. 555. In this context, one commenter contends A number of commenter& contend that a civil (administrative) proceeding; that in view of what it perceives as the exclusion of counsel under the secondly, the stringent standards of dual nature of NRC investigations, i.e., "reasonable basis" standard appointment and effective assistance of that they are conducted for civil and/ or proposed by the Commission would counsel mandated by the Sixth criminal purposes, the constitutional hardly be within permissible limits. Amendment and Federal Rule of implications of depriving subpoenaed According to these commenter&, the Criminal Procedure 44 do not apply to witnesses of the right to counsel should "concrete evidence" standard civil proceedings. In re Grand Jury not be lightly disturbed. A significant articulated by the D.C. Circuit in Csapo Matter, 682 F.2d 81 (3d Cir. 1982);

number of commenters also asserted represents the proper standard for Watson v. Moss. 819 F.2d 775 (8th Cir. that the ;;,,;;,,reasonable basis" standard disqualification of counsel. 1981); United States v. Rogers, 534 F.2d for exclusion of counsel is contrary to To the best of our knowledge, since 1134 (5th Cir.), cert. denied 429 U.S. 940 established judicial precedent and the Csapo, neither the D.C. Circuit nor any (1978). We also believe the nuclear bar recommendations of an NRC advisory other court has had the occasion to is large enough that alternative counsel committee which explored the merits of consider whether an administrative with the neceosary expertise will be adopting a sequestration rule at the NRC agency is still required to possess available if the need should arise. in 1983. See, Report of the Advisory concrete evidence that an investigation Committee for Review of the will be impaired before an exclusion Almost half the commenters take Investigation Policy on Rights of decision will be sustained. After issue with the one week time frame Employees Under Investigation. carefully considering the matter, cited in the supplementary information September 13, 1983. This report is however, we have concluded that the to the proposed rule as an example of a available for inspection and may be nature of the investigation involved in reasonable period of time within which copied for a fee in the NRC Public Csapo is sufficiently different from the to retain new counsel when exclusion Document Room, 2120 L Street, NW. public health and safety-related . authority has been exercised. (Lower Level), Washington, DC. investigations conducted by the NRC Specifically, they contend one week is At the outset, the Commission would that the Csapo "concrete evidence" an insufficient amount of time to secure like to make it clear that neither its standard would be inappropriate for appropriate alternate counsel, Office of Investigations nor any other application to NRC investigations. particularly in situations where a investigative or inspection office of the The Csapo decision involved an nuclear plant is remotely located and NRC has the authority to conduct investigation by the Securities and counsel expe1ienced in NRC practice criminal investigations. NRC . Exchange CommiBBion (SEC). The and Federal administrative law are investigations are conducted for civil statutory responsibilities of the SEC and scarce or unavailable. purposes only. Whenever investigations the NRC are sufficiently different to officials uncover facts which suggest justify using a less exacting standard Although the supplementary that a violation of criminal law has than the "concrete evidence" standard information cited one week as an occurred, those facts are referred to the of Csapo. Impeding an SEC example of a reasonable period of time, Department of Justice which conducts investigation. while serious, does not former §19.18(c) of the proposed rule its own inquiry; have substantial, immediate public did not attempt to quantify a reasonable Next, this rule in no way deprives health and safety implications. In time frame. One week may constitute a anyone of the right to counsel. contrast, undetected violations of reasonable period of time under some Concededly, however, it can operate so Commission regulations or the Atomic circumstances. What constitutes a as to burden a particular choice of Energy Act could have far reaching reasonable period of time, however, counsel. The Commission recognizes public health and safety implications. must be determined on a case-by-case that the right to select and be The NRC should not be required to wait basis with the official taking into represented by an attorney of one's own until it has "concrete evidence" that an choosing is not to be lightly disturbed. account the circumstances, including the investigation has been impeded before apparent availability of experienced However, this right, unlike the right to taking those steps necessary to protect counsel for the particular witness, the counsel itself, "does not override the its investigatory process and broader societal interests in the complexity of the case and the need for correspondingly, the public health and counsel to familiarize himself or herself effective administration of justice *** or safety. The importance of uncovering in in the integrity of [the] legal system." In with the facts, and the Commission's an expeditious manner willful regulatory need to conclude an investigation or re Grand Jury Subpoena Served Upon violations justifies use of a less stringent inspection promptly in order to protect Doe, 781 F.2d 238, 250-251 (2d Cir.), cert. standard. denied sub nom. Roe v. United States, the public health and safety. The final 475 U.S. 1108 (1988), United States v. A related issue raised by a number of rule retains the reasonable period of Reese, 899 F.2d 803 (8th Cir. 1983). Thus, commenter& is that the rule will deprive time standard which should be the right to a particular counsel may be individuals of the effective assistance of implemented on the basis of these kinds circumscribed, not only in the context of counsel. They assert this is so because of considerations. 19-SC-4

PART 19 STATEMENTS OF CONSIDERATION

2. Rule Ignores Fact That Multiple 3. Procedures for Excluding Counsel Are reasons to challenge in court. We also Representation Issues Are Governed by Inadequate do not agree with the suggestion that an Principles of Legal Ethics Many of the law rmn commenters agency cannot disqualify counsel but Several other commenters contend the have raised objections to the procedures must file a motion with a district court.

rule ignores the fact that the propriety of for excluding counsel. Specifically, they An administrative agency which has the multiple representation is governed by contend that the procedures are general authority to prescribe its rules of basic principles of legal ethics, and that inadequate and afford the interviewing procedure may set standards for the Code of Professional Responsibility official virtually unfettered discretion in determining who may practice before it. generally permits an attorney to the exclusion process. In this regard, See Koden v. Department ofJustice, 564 represent multiple interests. Another they point out that the rule does not F.2d 228 (7th Cir. 1977); see also commenter questions the Commission's include any provision requiring the Goldsmith v. United States Board of Tax authority to exclude counsel and states official to make factual findings prior to Appeals, 270 U.S. 117 (1926). In this that the Commission has no business or excluding counsel nor does it require the regard, we note that the NRC has particular expertise in determining for a official to document the basis for prescribed rules of practice for attorneys witness whether a conflict-of-interest . exclusion, or to communicate the basis in the context of adjudicatory exists or wherein lies his or her best to the witness or counsel. One proceedings before the Commission or commenter has also expressed concern licensing boards. See, e.g., 10 CFR 2.713. interest. with the provision of the rule that allows Moreover, the rule does not require The Commission, in the an interviewing official to exclude supplementary information and text of agency officials to resolve conflict of counsel. According to this commenter, a the proposed rule, expressly recognized, court is the appropriate forum for interest issues. Rather, the rule affords as we do again here, that an attorney resolution of conflict-of-interest issues. the official conducting the particular may ethically represent multiple clients It suggests including a provision in the inquiry a means for excluding counsel provided he or she discloses any rule requiring the NRC to file a motion who represents multiple interests when potential conflicts to the clients who before a Federal judge requesting the there is a reasonable basis to believe then assent to the representation. We disqualification of counsel. Another that the investigation will be impaired again emphasize that the rule does not commenter points out that because the by virtue of the multiple representation. provide that an attorney representing NRC's Office of Investigations (01) is, in In order to remove the perception that

• multiple interests will be excluded from this commenter's opinion, an adversary investigations officials have unfettered the questioning of other witness clients of the licensee, the provision allowing discretion in the exclusion process, the on the basis of the multiple an official of 01 to make the exclusion rule has been revised to afford a witness representation alone. To the contrary, decision alone is fundamentally whose attorney has been excluded the the rule contemplates the exclusion of misconceived. right to seek administrative review of counsel only in the limited The Commission agrees that the exclusion decision. Specifically, the circumstances where counsel's additional guidelines and safeguards provision affords the witness an representation of multiple interests should be included to assist and guide opportunity to appeal the exclusion poses a threat to the ability of the NRC agency officials in the exclusion process. decision to the Commission. Under the to develop credible facts upon which to Consequently, the rule now requires the rule, any witness aggrieved by an base its health and safety findings or interviewing official to advise a witness where the Commission could reasonably exclusion decision may challenge the whose attorney has been excluded of exclusion by filing a motion with the expect to obtain necessary safety the basis for the attorney's exclusion in information only if counsel representing Commission to quash the subpoena. To every instance. The rule also requires the witness did not also represent other that an excluded attorney be advised of ensure that investigations ere not interests. Such a threat might be posed the basis for his or her exclusion. In unreasonably delayed, this motion must where the investigation requires a addition, the rule unequivocally be filed within five days after the degree of secrecy that cannot be provides that the witness and the witness receives the written explanation maintained if the licensee and others are excluded attorney be provided a written for the exclusion from the interviewing likely to be apprised of the specifics of statement of those reasons. The rule official.

the inspection or investigation, or where retains the provision requiring the Environmental Impact: Categorical the nature of the investigation or interviewing official to consult with the Exclusion inspection may require employees to Office of the General Counsel prior to divulge information against the interests invoking the exclusion rule. Thia The NRC has determined that this of the employer, or where the witness, requirement is designed to ensure that final rule is the type of action described unbeknown to counsel or his employer, exclusion authority is confined within in categorical exclusion 10 CFR has expressed a desire for lawful limits. We believe these 51.22(c)(1). Therefore, neither an confidentiality. A decision to exclude provisions provide sufficient safeguards environmental impact statement nor an certain counsel in these instances is not against arbitrary and capricious environmental assessment has been a matter of legal ethics, nor is exclusion exclusion decisions. The Commission prepared for this final rule. under such a standard at odds with any does not believe, however, that a provision of the Code of Professional provision requiring the institution of Paperwork Reduction Act Statement Responsibility. Exclusion in these fact-finding proceedings in advance of Thia final rule does not contain a new instances is not based on ethical excluding counsel would provide a or emended information collection considerations but on a legitimate need higher level of protection than the above requirement subject to the Paperwork to maintain in confidence information procedures. If, as many of the Reduction Act of 1980 (44 U.S.C. 3501 et gained in the course of an investigation. commenters assert, the bottom line is seq.). Existing requirements were Indeed, ethical considerations are going to be judicial challenges to an exclusion decision, a petitioning party approved by the Office of Management essentially immaterial to the decision to exclude. See Csapo, 533 F.2d at 11. will have the written statement of and Budget approval number 3150-0046. 19-SC-5

PART 19

• STATEMENTS OF CONSIDERATION Regulatory Analysis reactors, Occupational safety and SUPPLEMENYARY INFORMATION: Upon health, Penalty, Radiation protection, judicial review, the United States Court The APA affords individuals Reporting and recordkeeping of Appeals for the District of Columbia compelled to submit to agency inquiry requirements, Sex discrimination. Circuit vacated the attorney exclusion under subpoena the right to be For the reasons set out in the portion of the rule, titled "Sequestration accompanied by counsel or, if the preamble and under the authority of the of Witnesses Under Subpoena/

agency pennits, other representative of Atomic Energy Act of 1954, as amended, Exclusion of Attorneys," which was choice. 5 U.S.C. 555[bJ. Although the the Energy Reorganization Act of 1974, published by the Commission on right to counsel guarantee of section as amended, and 5 U .S.C. 552 and 553, January 4, 1990 (55 FR 243). Professional 555(b) is not to be lightly disturbed, it is the NRC is adopting the following Reactor Operator Society v. United not absolute and may be circumscribed amendments to 10 CFR part 19. States Nuclear Regulatory Commission, when justice requires. Any restrictions 939 F.2d 1047 (DC Cir. 1991). on the right to counsel must, however, S6FR23360 Consequently, the NRC is revoking and be within permissible limits. Published 5/21 /91. removing the definition of "exclusion" Questions concerning the scope of the Effective 6/20/91 appearing in 10 CFR 19.3, and the right to counsel have arisen in the standard and procedures for attorney See 57 FR 23929 published 6/5/92. exclusion appearing in 10 CFR 19.lB(b)- context of NRC investigative interviews (e). of licensee employees and the licensee's Information collection requirements effective 1/13/92. Since this action implements the right to appoint in-house or retain ruling of the appeals court, the NRC has outside counsel to represent them. Sta.ndards for Protection Against determined that there is "good cause" Although there is nothing improper Radiation for publication of this final rule without about this kind of arrangement on its a general notice of proposed revocation face, it has been the Commission's See Pan 20 Statements of Consideration for comment. See 5 U.S.C. 553(bJ. experience tha1 such multiple However, the NRC is concurrently representation has the potential of publishing for comment a proposed rule undermining the investigative process that would replace the vacated attorney by inhibiting the candor of these 56FR61352 exclusion provisions with a rule that witnesses or by possibly precluding a Published 12/3/91 conforms to the guidance of the court. witness' opportunity to request Effective 6/20/91 confidentiality. The rule, which Environmental Impact: Categorical delineates the rights of licensees, Standards for Protection Against Exclusion witnesses, and their attorneys and the Radiation; Correction The NRC has determined that this NRC's responsibilities during the final rule is the type of action described conduct of interviews, is intended to See Pan 20 Statements of in categorical exclusion 10 CFR Consideration 51.22(c)(1). Therefore, neither an facilitate an expeditious and satisfactory resolution of NRC's inquiry environmental impact statement nor an into public health and safety matters. 56FR65948 environmental assessment has been This final rule is also intended to avoid Published 12/19/91 prepared for this final rule. the confusion and delay that obtained Effective 1/21/92 Paperwork Reduction Act Statement through attempts to resolve multiple representation issues on an ad hoc 10 CFR Part 19 This final rule does not contain a new basis. or amended information collection RIN 3150-AE09 requirement subject to the Paperwork Regulatory Flexibility Certification Excluslon of Attorneys From Reduction Act of 1980 (44 U.S.C. 3501 et Interviews Under Subpoena seq.). Existing requirements were In accordance with the Regulatory approved by the Office of Management Flexibility Act of 1980, 5 U.S.C. 605(bJ, and Budget approval number 3150-0044. AGENCY: Nuclear Regulatory the Commission hereby certifies that Commission. this rule does not have a significant Regulatory Analysis ACTION: Final rule. economic impact on a substantial This regulatory action is taken in number of small entities. The final rule,

SUMMARY

The Nuclear Regulatory response to the decision of the United which simply sets forth the rights of Commission (NRC) is revoking its States Court of Appeals for the District licensee employees and other regulations pertaining to exclusion of of Columbia in Professional Reactor individuals who are compelled to attorneys from interviews under Operator Society v. United States

• appear before NRC representatives subpoena. These regulations were Nuclear Regulatory Commission, 939 under subpoena, has no significant vacated upon judicial review by the F.2d 1047 (D.C. Cir. 1991). The appeals economic impact on a substantial United States Court of Appeals for the court vacated the attorney exclusion number of small entities. District of Columbia Circuit. portion of 10 CFR part 19. Consequently, EFFECTIVE DATE: January 21, 1992. the NRC is revoking the attorney Back/it Analysis FOR FURTHER INFORMATION CONTACT: exclusion provisions reported in 10 CFR The NRC has determined that the Roger K. Davis, Office of the General part 19.

backfit rule, 10 CFR 50.109, does not Counsel, U.S. Nuclear Regulatory apply to this final rule. Therefore, a Back.fit Analysis Commission, Washington DC 20555, backfit analysis is not required because telephone (301) 492-1606, The NRC has determined that a these amendments do not involve any backfit analysis is not required because provisions which would impose backfits these amendments do not involve any as defined in 10 CFR 50.109(a)(1J. provisions which would impose backfits List of Subjects in 10 CFR Part 19 as defined in 10 CFR 50.109[a)(1).

  . Environmental protection, Nuclear materials, Nuclear power plants and 19-SC-6

PART 19

• STATEMENTS OF CONSIDERATION List of Subjects in 10 CFR Part 19 EFFECTIVE DAYE: March 1, 1993.

Criminal penalties, Environmental FOR RIRTttER INFORMATION CCNfACT: protection, Nuclear materials, Nuclear Roser IC. Davia, Office of the General power plants and reactors, Occupational Counsel, U.S. Nuclear Regulatory safety and health, Radiation protection, Commission, Washington. DC 20555, Reporting and recordkeeping telephon<< (301) 492-1606. SUPPl.EIIDff"ARY INFOAIMl'ION: requirements, Sex discrimination. Clmtants For the reasons set out in the L Badlgnnmdi preamble and under the authority of the U. llllspclme* to Public Comments on the Atomic Energy Act of 1954, as amended, Proposed Rule the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 552 and 553, I. Backgnmnd the NRC is adopting the following On December t9. 199t (56 FR 65949), amendments to 10 CFR Part 19. the Nuclear Rqulatory Commission (NRC) published proposed amendments ta Its regulations found at 10 CFR part 57 FR23929 19. The propo~d amendments provided Published 6/5/92 for the exclusion of counsel from Effective 1 /13/92 subpoenaed intarvt.ws Ill CGIIDlldion with an NBCinvllSligation when tbs& See 56 FR 23360 published 5/21/91. counsel represents multiple interest& in Information collection requirements the investigation and there la cancrete effective 1/13/92. 57 FR 61780 evidence tha& such mpresentation Standards for Protection Against Published 12/29/92 would obstruct and fmpade the Effective 3/1 /93 Investigation .. The proposed Radiation amendments also provided procedures See Part 20 Statements of Consideration 10 CFR Part 19 to be followed by the NRC and RIN31~E.11 individual witnesses: in amnection with the NilC'a uardse of its authority to 57FR27845 Exclua(OB of AHomaya From exclude counsel. Published 6/22/92 The Commission had published a lntervrewa Under Subpaena final rule on the same 1111bject on Standards for Protection Against AGENCY: Nuclear Regulatory January 4, 1990 (55 Pll 243). That rule Radiation: Correction Commission. provided, inter alia. far tha exclusion of ACTION: Pina! rule. couDSBl fm: a subpoenaed witness when See Part 20 Statements of Consideration that counsel represented multiple SUIHWIY: The Nuclear .Resulalory intemsta and there existsd

• seasonable Commission (NRC) is amendblg its basis to "bells* that such representation 57FR385BB regulatiom to provlili. lor the exduslon would prejudice, impede, or impair tlle Published B/26/92 of COUDUl from ft nbpClt!Daed interview integrity of the inquiry. Upon legal Effective 9/25/92 wheD thal rmu111&l rapresenta malUple challenge; the United States Court or intaresta ia the IDvesligotiou and there Appeals for the District of Columhla

                                                                     ~~=aticm.

is conae&a evidtmca that the CGU11Sel's Circuit struck dowa tha. portion af the Standards for Protection Against Radiation; Extension of pnmmca at tha Interview would final rule CID atmmey adusion. Implementation Date Professional Reactor Operator Society v. obstruct and impede These amudmmm ua to Nuclear Regulatory Commission. 939 See Part 20 Statements of Consideration enaure the inlegrit]I' nnd efficacy of the F.2d: 1047, 1052.(D.C. Cir. 1991) inwstigative aad impedian process. (hereafter --p.ROS"). . These BIIMIDdnumts pnrvide a standard Spedfically, the Court DI Appeala 57 FR 55062 and procedures for making and . ruled that the NRCmust apply the aama Published 11/24/92 effectuating the decision to uclude standard for attomay uduaioD that the Effective 12/24/92 counsel Court had pr&1riously Nq1.W'IMI of the Clarification of Statutory Authority for Purposes of Criminal Enforcement See Part 11 Statements of Consideration 19-SC-7

PART 19

• STATEMENTS OF CONSIDERATION Securities 1k Exchange Commission by "directly or indirectly" from the question.ai to Us necessity and general*

virtue of the Court's interpretation of the standard for exclusion of counsel. The propriety" (35S F.2d 550, 552 (9th Cir. right-to-counsel guarantee of the. Commission has also revised the rule to 1 1966)). For reasons akin to those** Administrative Procedure Act (APA), 5 provide that the interview shall not be

• motivating the SEC rule, the NRC U.S.C. 555(b). The Court stated that to rescheduled to a date that precedes the
• proposed and now finalizes its attorney exclude counsel "the agency must come expiration of the time provided under exclusion rule.

forward with 'concrete evidence' that 10 CFR 19.lB(d) for appeal of exclusion The NRC'.s investigation of unsafe the counsel's presence would impede its of counsel, unless the witness consents practices and potential violations of the investigation." PROS, 939 F.2d at 1049 to an earlier date. In addition, the final Atomic Energy Act and NRC regulations (citing SEC v. Csapo, 533 F.2d 7, 11 rule requires that the written notice of is an important means of ensuring (D.C. ar. 1976)). Thus, the Court the grounds for counsel's exclusion also  : public health and safety in operation of . vacated the attorney exclusion portion describe the right to appeal the nuclear power plants and other usee.of. of the rule, since its "rational basis" exclusion to the Commission and* nuclear material (see 10 CFR part 19; 10 standard was less rigorous than the thereby obtain an automatic stay of the CFR 1.38). NRC inv~stigators often "concrete evidence" requirement. On effectiveness of the subpoena pending interview licensees, their officials and December 19, 1991 (56 FR 65948), the the Commission's decision. employees, and other individuals Commission responded to the appeals Because these changes are logical having possiblo knowledge of matters court decision by publishing notice in outgrowths of the proposed under investigation. In many cases, the Federal Register of the amendments and no other modifications investigating officials conduct extensive Commission's revocation of its rule on are made, the Commission concludes and difficult inquiries to determine .. attorney exclusion*, l.e., the definition of that the final rule should become** whether violatAons were willful and/or "exclusion" appearing in 10 CFR 19.3 effective without further notice' and whether licensee's management engaged and the standard and procedures for comment. The Commission's l'Qsponses in wrongdoing. Yet, effective . ~ attorney exclusion appearing in 10 CFR to the concerns of the commenter& are identification m1d correction of unsafe

• 19.lB(bHe). On December 19, 1991 (56 set forth below. practices or reE,rulatory violations .

FR 65949), the Commission also . through an investigative or inspection published the proposed amendments in A. Need for the Rule process can depend upon the

• the Federal Register that would
• One commenter argued that the willblgness of lnc:Uviduals having * *.

conform the NRC's attorney exclusion expected rarity of application of the rule

• knowledge of the.practices or violations requirements to the Court's ruling. demonstrated the absence of a need for to disclose that information to IL Responses to Public Comment.ii on the-rule. The Commission does expect interviewing officials.

the Proposed R.ule that the rule will be invoked only in *rare Therefore, an specified in 10 CFR and compelling cases. However, the 19.2, ~e rule would apply to all The Commission received nhie Commission continues to believe that interviews under subpoena within the comments on the proposed December the rule should further expeditious and jurisdicti?n of the Nuclear Regul~tory 19, 1991 rule. The commenter& included satisfactory resolution of some Commission oltber than those which one individual, the Nuclear Utility investigatioQs and that this is important focus on NRC iamployees or its . Management and ResourcesCouncil to the Commission !8 fulfillment of its contractors. While the purposes of the (NUMARC), three utilities endorsing statutory mission. By providing to rule relate primarily to interviews NUMARC's comments, the Professional witnesses, counsel, and agency staff con~ucted under subpoena by the Reactor Operators Society (PROS), a law both a general standard for determining NRC 1s Office of Investigations, the firm commenting on behalf of PROS as whether disqualification is appropriate NRC s predominant user of investigative well as seven utilities and a major and procedures for implementing and subpoenas, th~ final rule would also. engineering firm, a law firm challenging these determinations, the apply to ~C mspections and commenting on behalf of six utilities, final rule should reduce delay, investigations conducted un~er and a law firm that represents utilities uncertainty and confusion associated subpoena by other NRC officals. The and individuals holding NRC licenses. with consideration of the exclusion of rule does n!>t apply, however, to All commenter& opposed adoption of counsel subpoenas issued pursuant to 10 CFR the proposed rule. The comments are Altho~gh several commenter& 2.720, which applies to subpoenas available for inspection and copying in

• emphasized the circumstances in which requested in hearings.

the agency's Public Document Room, *d ffi d Several commenter& argued that there 2120 L Street NW. (Lower Level), courts h a~e foun insu cient groun s is no need for the rule because of the

• Washington, DC. . for ex~l.usion of counsel by the . . availability of other means for ensurhig The Commission has considered the Securities and Exchange Commi~sion proper conduc:t by counsel (e.g., * .

comments received, but is not (SEC), the same courts have exp_h,citly investigation and prosecution under persuaded that the proposed

• recognized the propriety and utih!Y of Federal criminal statutes or amendments should be withdrawn or this type of rule. 1n Csapo, the Umte.d investigation and disciplinary action or modified in substantial ways as some States Cou~ of Appeals for the District disqualification under standards of commenter& requested. However, the ofCol.umbia Circuit stated,(533 F.2d at professional conduct for lawyers). In Commission has clarified its description 11) with ~gard fo the SEC s some cases, tbe causes of impairment of of the standard for exclusion by stating sequestration rule that- the investigation may Justify the threshold requirement as "concrete We do not question Its utility in preserving *consideration of criminal or other evidence that the presence of an the integrity of an investigation and proceedings. However, the .

attorney representing multiple interests recognize its practical necessity in certain Commission's objectives, standard for would obstruct and impede the circumstances. action, bur<len of proof, and remedy, investigation or iilspection * * *" A 533 F.2d at 11, In SECv. Higashi, the i.e., exclusion of counsel from particular similar change was made in the Ninth Circuit said that "(t]he reason for interviews, may differ widely from definition of "(e]xclusion." The and purpose of the (SEC's] sequestration those associated with criminal statutes Commission has deleted the phrase rule are clear and there can be no or rules of conduct. Therefore, the 19-SC-8

PART 19

• STATEMENTS OF CONSIDERATION possibility of collateral or future actions licensing proceedings and issuance of pnsenc:e would obstruct and impede its addiessing misconduct in some cases orders. f.ovestigation.N Id. at 11. Theref(,)l'e, the pursuant to other authority is 811 B. Attorney Misconduct
• Commission does not interpret Csapo as insufficlent basis to ignan the potuutial limiting tu grounds for exclusion of D88d mr
• d.inlCt detemmation of Most cammunters indicated that the coUDS8t to "miscondud."

whether the counsel rep~ting proposed standard for exclusion of coWU1el was deficiml because it did not c. Application of the Rule mubiple intenists should be excluded

&om an intmviuw.                                 require a showing of misconduct* or          . Most commenters expressed or

. A$ notud in the supplementary wiang,doing by tba attomey npresenting endorsed the view that the information included ID the notice of multipla partiei.. These commentem sup_plementary. lnformation in tha notice the proposed :rule (56 FR 65949-, 65950: generally concede that u.nethJcal m of the proposec:lruls(56 FR6594~ December 19, 1991}, quaitions rugarding illegal ccmducl by CGUDll8l0 such 8& 65950: Decambar 19. 1991) show& that impairment of fnyestigation u 111 !NUil encomaging or condoning periwy or the intended applicaticm of the rule is of multiple :repniS8Dtatlon han- arisen engaging in a pattern of overt disruption inconsistent with judicial dinlctiaa. in SCIIID8 cases'in th& put. Several of the o(tha interview. would supply pounds They SUl!88!1t that the Commiselan'a commenters argued that the dted cues for exclusion. Concnm e\ddence that idanti&cation. of concems motiva~_8 did nc,t innln any grounds for such amdud is obstructing and the rule. and o£ some of the potsatially disquali&cation of counsel and that any impeding an- investigation could lead to relevant evideDCS displaces the concem about multiple ntpresentation exclusion under the rule. However. the "concrete evidence" standard. Commission does not fiDd u a matter of While "c:.oncnrte evidence" was not in thosll' cases was improper. The logic or law that then I.II no possibility defined u.pressly in the casea Commission believes that the final rule re.fenmced above, the discussion md will facilitate- ntSOlulion or this type- of of a finding of concrete aYid.euce of impainnilllt on grounds other than application of that standard indicates. question when ii arises hi the future. M the Commission has stated (56 PR misconduct or wrongdo:f For instance, the Com

                                                                               ,,~l, COUD118L on do*

tbe court& nqu1re morv than 1peculation ar even reuonable concem about 65949, 65950; December 19. 1991.J, the not find it necessary to rule out potential impairment. Rather, axclmilm justification* for this rule is not pren_ifsed eppll.cation of the ruJe to*e c:asa of c:ouusel requinls real er tanpbi. on whethermJ p,ior.caaactwilly presenting coacrete. evidmu:a of evidence demonatntingthat tbe involved "concrete eridence'9 that the nondistjoswe of information by a investigation would be impeded asa hmtstigeticm would be impeded. witnesa as a result of tha presence of result of the multiple repmaentaticm. NUMARC arid another commenter indicated that adoption oflha proposed counsel represeutiDg,multiple intunsta nus, the Commission recognize,. that even though the counsei has not

• neithermultiple representation nm rule would* be inconsistent with the engaged in misconducLMona.ver.. speculation about a potential for Commission's efforts to eliminate. wbatlw m not an. in.vestiptian. will be obstruction of an investigation by, for unnecessary regulatoiy burdena (see. impeded could ha melavmt. iD
• pure examplg. the JD81'8 lharing of e.g., S7 FK 4166; FebruEJ 4. 11192. mc:l . miaconduct. case. .IDfmmation provided by an I n ~

57 FR 39353~A1J&Wll 31.1992). The The Commission also doeuaal to a l~UIIDt mtervi8W118, is a Commission diaagreuwiih tha Interpret the lapl precedent. a& IUffldent tiuis lo exclude caanseL suggestion that. the ruJa ralla to atrib a permitting disqualifkation only f'or The.Cammiaaian cmmot piedic:t ID fair and 188eoDible balan£a between. tha rniscoQ.duct. wrongdoin&, or active any aigDlfiamt detail whet l8t of right to anmsel md th& need rm obstruction 'by counsel Indeed.. in c:bcumstancflll.will arise iD pmtfcuJar infmmatian. In. fmrettUptlcrns. In. this statlng the.otandard t~ which the . mvestipticms that will kwi to-cue. ilis Cornrninlon i&upralllilly Commission muat adhen~ the court m applicatim1; of tbs exclusion rule. Jn. lhe adopting the judicial reaolutioD of that Pros did not mandala "concrete proposed rule. howewr, the issue. Thal resolulion dcesnot involve evidence .. of wrongdoing but rather Commfuion did endeavor to identify-a highly prescriptive standazd. Rather.it 11

                                                    'concmte evidence' that counser1             some of the factual circumstances which involve& a dernaading g_eu.e1al standard         presence would impede lthe agency'sl            would tend to support Invocation of the that is expected to have very llm!t&d            investigation." Pros, 939 F.2d 1049             rulL For instance. it suems clear that the application. in a fraction of NRC                (citing SECv. Csapo, 533 F.2d at 11).          Commission'~*interests in the intesrity interviews under subpoena.                           The commenter& insisting on the            and effectiveness of Its investigaUon NlJMARC stated thal Ula rule wu               necessity of misconduct or wrongdoing           may outweigh a witnesses' choice of unnecessary becauaa NRC mlas                     u the essential substantive element for        counsel' for multiple interests where CUffllntlJ in effect (10 CFl1 part 2)            disqualificatimi point ta Csapo. in             there is reliable, fadual mdenc:e that a provide a medunriam mi' impmmg                                      or which the Court Appeals agreed with            witness is withholding, orwill sanctiom for attomey miscandm:t in               the lower court's finding that the SEC         withhold, informaUon critical to the various contexts. The mlltlng                    had failed tQ produce any **concrete           investigation because the information proviaions- dinc:lly mlatin1 m litBndards        evidenca'" or misconduct (533 F .2d at 8). will be dwed with the witnesses*

of practu> (10 CPR.2.713) cmAJm While that opinion clearly affirmed an. employer or 111pemsor by vbtue of appearulCB and Jl1l1dim in ad)ncticetory evidentiary tmasho!d of *concrete multiple ~resentation. proceaclinp. By this &ml mle. howavar; evidence" in relation to the alleged 11nis, the Commission c:cntinuee te> thti Commission inbmds ID pmvide misconduct, the Court of Appeals also believe that evidence that the employee specific dinc:tion for expeditious found that the mcord failed to disclose had* CODC8lll thal biaump!oyment resolution of dads!om ID excludo "any reason for-barrlngcounset would be Jeopardiad by tnmrmdttal of COUDHl because cf abmuction m selected'" bf the witness fid:) (emphasis information from lhe lnteniew* to the imped.iment of mftlltigatiw lntarviawa added). And, the Court'* specific licensee would.bemlevant. 'l1le 191uJting &am mwtiphu111pn*utation.. directiau wu that "bafOl8 the SEC may Commission beliBYN that evidence that Therefore,. tbs flna1 m1a l8n'8S pmp018S *exclude m attome:, from lta- the multiple npnsentation would lead that. l!fB not met bJ tba gaeial 1(> CFR procaedinp. il must come, forth * *

• to discloSUNII of the 11Ubshmce of an part 2-ltules of pmcUce lordomestic with 'conaeta-evtdunce* that (counsel's} inte,view to
• iltuN mtemewee or 19-SC-9

PART 19

• STATEMENTS OF CONSIDERATION subject in the investigation would also notes that the same modifiers were of General Counsel. Another commenter be relevant althouRh not sufficient present in the final rule published on* recommended that the investigator be unless there was also concrete evidence January 4, 1990 (55 FR 243), and that required to ob~ain a written opinfon . *
• that the disclosure would obstruct and the court of appeals did not comment on from the Office of the General Counsel impede the investigation. However, the their presence in that rule. that the standeird of "concrete evidence" Commission expects that it will be a The key requirement is "concrete has bean met. The Commission rare case in which there is actual proof evidence" of obstruction and disagrees because it has already added that the multiple representation will impediment. Whether the causation is numerous safeguards which it considers seriously obstruct and Impede the described as dinict or indirect, the to be sufficient, including the investigation, e.g.* critical Information is question in a particular case will be . '.'consultation" requinlment, to*guide being or will be withheld. .
• whether there ls concrete evidence that agency officials and prevent arbitrary Some commenters misunderstood the the presence of counsel representing action in the exclusion process. The rule Commission's statement that concema multiple interests would obstrud and .
• requires that tllia interviewing official ariS& about inhibition of the candor of . impede the investigation. It is thit effitcts provide a written statement of reasons witnesses where the. interviewee Is of multiple representation, *not multiple for the exclusion *10 the witn8SII whose.

repre981ltad by counsel who is paid by representation standing alone, that may attorney has baen excluded and to the the licensee and also 'represents the . in some cases impede tha*invastigation. excluded attorney. The interviewing licensee or licensee's officials under For instance, if there ware concrete official must consult with the Office of investigation, particularly where the evidence that a present or future witness the General Counsel prior to invoking matter at issue is whether the licensee's

• will not answer questions or provide the exclusion rule. The witness whose employees have been, or are being, evidence because his attorney's counsel baa bean excluded may appeal harassed or intimidated for raising representation of multiple interests will the decision to the Commission and safety issues (56 FR 65949; December necessarily result in the sharing of the automatically obtain a stay of the
• 19, 1991). These commentars viewed witness' testimony or*evidence with a effectivenen of that decision pending these statements as axampl~s of cases in represented target, invocation of the rule decision by the Commission.

which the* Commission would deem could. be warranted whether the cause* of Of course, tllie Comminion* may also exclusion to be appropriate. The the impairment is described as direct or qu~h or modlify the subpoena if it finds Commission McogniZ811 that these indirect. Clearly, a mere-ichain of that the exc;luinon of counsel .decision is* circumstances do not necessarily lead to inferences and speculation would not not based upon concrete. evidence ot if non-disclosure*of critical information or constitute "concrete* evidence." the subpoena iff otherwise unreasonable; other serious impairment ofthe Nonetheless, the "concrete evidence" or requires evidence not relavanf to any investigation. Exclusion of counsel .requirement does not preclude a matter in issuia. Moreover, the under the rule is warranted*only when showing of obstruction and impediment Commission (like the SEC) must.still there is also eoncrata evidence, not just through indirect effects, but rather prevail in court in a subpoena mare concern or speculation, that the implicitly embraces the possibility of enforcement proceeding iftha parson investigation will be obstructed and such a showing. Therefore, the under subpoena declines to comply. A impeded as*a result oftha presence of Commission has decided to delete the court in which the basis for the the counsel representing multiple phrase "directly or indirectly" from* the exclusion is Htigated may also conduct interests. *

• rule BS 1DlDe~*. an evidentiary hearing if the factual.

Se.veral commenters expressed . . For iilcreased clarity, the Commission issues require it. SEC.v. Csapo, 533 F.2d concem that the Commission would bu also revised the standard for

• ett1
• find obstruction. and impediment to the exclusion by stating the ~hold NUMARC recommended that

.inV8Stigetion where minor . *requi1emant in §.19.tB(b) as *iconcrete . § 19.tB(d) be ll'8vised to provide the* inconvenience results from such evidence that*the presence of an . . witness and tl!ie witn8ll8' counsel an traditional activities of counsel as attorney representing multiple interests opportunity to appear before the endeavoring to leam mc:ire about the would obstruct and impede the Commission in the coune of the investigation or to advise clients to investigation or inspection. * * *" In Commission'u evaluation of the appeal testify truthfully but cautiously. The the proposed § t9,l8(b), the requirement of an interviewing offtcial'11 decision.

• Commission recognizes that these types was described as "concrete evidence The pli1J>OS8 would be*to ensure that the*

of activities do not establish real that the investigation or inspection will adversely affected parties had a right to obstruction and impediment to the

• be obstructed and impeded, directly or ha heard. The* Commission believ811 that*

investigation. Indeed, these traditional indirectly, by an attomay's * * ** the procedum in the final rule, activities of counsel are common to representation of multiple interests." A providing a sRatement of reasons Jor legal representation of any witness. *

• similar:change was made in the . exclusion and permitting.the filing ofa Some commenters fault the proposed definition of "[e)xclusion" in § 19.3.
• motion to quosh, provides II reasonable .

mla's statement that disqualification The revised language tracks more

• mechanism for presentation of the nnn may be based on concrete evidence that precisely the judicial.articulation of the .of affected par.ties. However, nothing in multiple representation will "directly or threshold requirement; Thus the the rule pnvonts the witness moving to indirectly" impede the investigation. revisions further affirm and clarify the quash the subpoena* from requesting an Several commenters state that the Commission's intent to follow the . opportunity for an oral presentation in Commission's use of these modifiers judicial guidance. connection with the motion and stating unjustifiably lessens and obscures the the reasons supporting the need for oral "concrete evidence" standard. D. Adequacy of the Procedures presentation.

The Commission recognizes that the NUMARC and another commenter The comml!llts of PROS included the Court in Pros and Csopo did not use the stated that "consultation" by the suggestion that the rule, if issued, be modifiers "directly or indirectly" in investigating. official with the-omca of amended to require that the .wftnass be,* referring to the requirement of conaete the General Counsel before

• decision to advised of th<B right to counsel at Uie evidence of impediment to the exclude counsel is ineffactualwithout time of an exclusion of.anmsel and investigation. However; the Commission the raquiremeat of con58llt by th& Office prior to any subsequent interview.

19-SC-10

PART 19

• STATEMENTS OF CONSIDERATION NUMARC recommended that.internal would proceed with the interview ofthe approved by the Offi~ of Management proQJdures toimplement the rule witness until more than five days after
• and Budget approval number 3150-shouldbe'emended to direct NRC the receipt by the witness and the 0044.

inve.ltigators to advise witnesses of the counsel of the written statement of right to,counsel, including a right to reasons for exclusion, unless the Regulatory Analysis consent to multiple representation, and witness requests that the interview The AP.A offords individuals of the provisions of§ 19.18, including proceed without counsel or. with new compelled to submit to agency inquiry the right to appeal any exclusion of counsel at an earlier date. Therefore, the under subpoena the right to be counsel.

• Commission has revised the text of the accompanied by counsel or other As a practical matter, a witness who proposed 10 CFR 19.18(e) to provide representative of choice (5 U.S.C.

is already represented by counsel can be that the interview shall not be 555(b)). This right IQ counsel guarantee expected to ponilult with counsel about rescheduled to a date that precedes the .is not absolute and may be such_issueus the right to counsel,. . expiration of the time provided under circumscribed within permissible limits co~_sent t~ multiple representation and 10 CFR 19.18(d)"for appeal of the when justice requires. An exception has witnesses' rights under this final rule. exclusion of counsel, unless the witness been recognized for cases in which there Thu~. wpile an investigator may consents to an earlier date. is concrete evidence that the presence of reasonably inquire about issues of

• Aside from this minimum µelay,. counsel representing multiple interests consent to multiple representation in however, what constitutes a reasonable during an investigative interview would connection with an investigative
• period of time for the continuation of an impede and obstruct the agency's interview, it does not seem necessary to interview after exclusion of counsel investigation.

require that an investigator provide must be determined on a case-by-case Questions concerning the scope of the general direction or.advice.on rights and basis, with the interviewing official right to counsel have arisen in the lirnitations*regarding an. attorney's taking inlo account the relevant . context of NRC investigative interviews rep.ntation af multiple interests to a circumstances, including the of licensee employees when the witness already represented by counsel. availability of substitute counsel, the employee is represented by counsel who Moreovilr,*the Commission-was asked to complexity of the case and *the grounds also represents the licensee or other requi,re that b:ivestigato~ advise . . for exclusion, the dale of actual notice witnesses or parties in the investigation. wil!!PSJ.8.9.Q.f',the right to con~lit*to . to the witness and excluded counsel *of This an,tngement is riot improper as a mµIUple tepi'itsentaUon, althoQgh ,ven . the grounds for exclusion, and the general matter. This final rule provides, un~r ~dards of professional conduct. Commission's need to complete the however, that counsel representing for-l!lwy,rs 111,1~ consent is subject:to . i* investigation promptly.in order to multiple interests may be excluded from various contUtlons and exceptions. See, protect public health and safety, a subpoenaed interview if there is. e.g,i Wheat v. United States, 486 U.S. PROS recommended that the witness concrete evidence that cQunsel's 153 (1988) (district court. may refuse whose counsel has been excluded be presence would obstruct and impede waiver of conflicts of interest in cases presented "concrete evidence" that the the inve~tigation. This final rule also wher\l a potential for _conflict exists); new counsel has a previous record of delineates responsibilities of NRC FTCv~* Exxon, 636 F.2d 1336, 1342 (D.C. accomplishment in, and knowledge of, officials and rights of interviewees in Cir. 1980) (district court's order to retain the nuclear industry that is on the same connection with the exercise of the separate 'counsel because of potential level as the excluded counsel. Th"e authority to exclude counsel. Thus, the conflict violated neither due process nor Commission disagrees that it should rule is intended to further expeditious the APA); However, in order to ensure have the burden of i.njtlating an and satisfactory resolution of NRC's that the witness is aware of the

• investigation and making a finding on inquiry into matters concl!ming public Commission *s* procedures for appeal of this question. The witness, not the health and safety. Guidance in this area the Qclusion decision, the Commission Commission, would choose new should reduce delay and uncertainty in has revised the text of the proposed counsel. Many counsel and law firms the completion of an investigation when

 § 19'.18(c) to require that the written             appear in connection with Commission        question!! of multiple representation notice. of the- reasons for exclusion               proceedings and investigations.             arise. The foregoing discussion include a desctjption of the rights                  Moreover, the Commission has already        constitutes the regulatory analysis for provid!!d iJJ § 19. lB(d), regarding the            provided that a witness may either          this final rule.

right-to ap~al. the exclusion decision. proceed without counsel or request a NUMARC Yecommended that Regulatory Flexibility Certification delay for a reasonable period of time to proposed 10 .CFR 19.18(e) be clarified to permit retention of new counsel. In accordance with the Regulatory assure that.a witness' interview is Flexibility Act of 1980, 5 U.S.C. 605(b), delayed**!lUtQinatically to at least the Environmental Impact: Categorical the Commission hereby certifies that ci!tt&of.the :realipt of the written . Exclusion .. * . this final rule would not have a statem~iil ~f-basis for-exclusion. An The NRC has determined that this significant impact on a substantial automatic delay is clearly unnecessary, final rule is the type of action-described n*umber of umaU entities. The final rule however,* if the witness chooses to -in categorical exclusion 10 CFR . concerns an attorney's af pearance at a proceed without counsel or with new. 51.22(c)(l). Therefore, neither an* .subpoenaed interview o a licensee's counsel at an earlier time. Moreover, the. environmental impact statement nor an employee or other individual during an proposed provision already permits the environmental assessment has been NRC investigation or inspection in wi~ess to request a reasonable p~riod* of prepared for this final rule. circumstances where there is concrete time to l)btain new counsel, and the . evidence that the attorney's .

'Yi~!ilSS may even obtain an automatic              Paperwork Reduction Act Statemen~            representation of multiple interests stay:cifthe*subpoena during an appeal                   This final rule does not contain a new   would obstruct and impede the of the,exclusion decision to* the

• or amended information collection investigation or inspection. It provides Goinirii~l!ion;- . . . . . requirement subject to the Paperwork procedures for exercise of the authority

  .: Nonetheless, the Commission *would            *Reductjon Act of 1980 (44 U.S.C. 3501,       to exclude that attorney from the

-ri.ot-sxp~ .that*an interviewing official .et seq;), Existing*requirements were* interview in these limited

• 19-SC-11

PART 19

• STATEMENTS OF CONSIDERATION.

circumstances and for challenge of a safety issues. The amendments are protection provisions brought about by decision to exclude the attomey. intended to conform current NRC the Energy Policy Act of 1992. regulations to the new nuclear llacldil Analym "JI. Summary of Proposed ltules whistlcblower protection provisions of The NRC bu determined that a the Energy Policy Act of 1992, which Currently, 10 CFR 19.ll(c) requires backlit analy11i1 ls not required because was enacted on October 24, 1992. that the June 1982 version or later these amendments do not involve any provisions which would.bnpose backfits EFFECTIVE DATE: November 8, 1993. revision of ihe NRC Form 3, "Notice to as defined In 10 CFR 50.109(a)(1), FOR FURTHER INFORMATION CONTACT: Employees," be posted. This section is James Liebennan, Office of being changed to ensure that the most List of Subjects ln 10 CFR Part 19 recent version of NRC Fonn 3 is posted. Enforcement, U.S. Nuclear Regulatory Criminal penalUes, Envlroom~tal Commission, Washington, DC 20555, The language is modified so that the protection, Nuclear materials,* Nuclear . Telephone: 301-504-2741. date of publication for NRC Fonn 3 is power plants and- reactors, Occupational inserted in the revision to 10 CFR part safety and health. Radiation protection, SUPPLEMENTARY INFORMATION:

19. In the future, if NRC Fonn 3 is Reporting and reco~plng l. Background changed, 10 CFR part 19 will also be requjrements, Sex discrimination, JI. SU11IJDIIJ'Y. of l:'J'oposed Rule changed. With this rulemaking, 10 CFR F'or the reasons sat out In the m. Public Comments and the Commission's part 19 is revised to specify NRC Fonn preamble and under the authority of the Response 3 (6/93). The revised NRC Form 3, in Atomic Energy Act of 1954, as amended, JV. Environmental Impact: Categorical the Energy Reorganization Act of 1974, Exclusion addition to addressing the 180-day time as amended, and 5 U.S.C. 552 and 553, V. Paperwork Reduction Act Statement period that employees have to file a the NRC is adopting the followmg VL Regulatory Analysis complaint with the Department of amendments to ao CFR part 19. vn. Regulatory Flexibility Certification Labor, describes protection for VUI. Backlit Analyai1 employees who: (1) Bring safety I. Background complaints to their employers; (2) refuse to engage in an*unlawful practice, 58FR 7715 On October 24, 1992, the President provided that the employee has Published 2/9/93 siBDed into law the Energy Policy Act of identified the illegality to the employer; Effective 7/1/93 1992. Section 2£102, "Employee and (3) have testified or are about to Protection for Nuclear Whistleblowers," testify before Congress or in any Federal Ucenses and Radiation Safety includes provisions amending Section or State proceeding regarding any Requirements for lrrad/ators 210 of the Energy Reorganization Act provision (or proposed provision) of the (ERA) of 1974, as amended. The changes ERA or the AEA. The June 1993 version See Part 36 Statements of Consideration pertinent to this rulemaking include the of Form _3 was distributed in July 1993.

following: Additional copies are available as (1) Because the ERA contained two specified In 10 CFR 19,11. In addition, sections 210, the legislation renumbered 10 CFR parts 30, 40 and 70 are modified the whistleblower protection provisions to require posting of NRC Fonn 3 by as section 211. general licensees subject to 10 CFR part (2) The new legislation extends the 19. period in which a*whistleblower Section 211 requires that the complaint may be filed with the provisions of that section be posted. The Department of Labor (DOL) from 30 Department of Labor (DOL) is days to 180 days. *: Implementing procedures to require all (3) The new legl~lation extends and/ employers to post the provisions of or clarifies protection to new classes of section 211. Accordingly, given that the employees and employers to Include: (a) DOL action will require posting by a Employees who bring or are about to class of employers that includes all NRC 58FR52406 bring concerns directly to their Published 10/8/93 licensees, the NRC is not separately Effective 11 /8/93 employers: (b) employees who have requiring the posting of the provisions.

                                            "refused to engage in" an unlawful            However, NRC licensees will be subject practice, provided that the employee          to the DOL rule implementing the has identified the illegality to the          posting provision of section 211 and 10 CFR Parts 19, 30, 40, 50, 60, 61, 70,     employer; (c) employees who have              will also be required by this rule to post 72, and 150                                  testified, or are about to testify, before    NRC Form 3 which summarizes Congress or in any Federal or State           protected activities, defines RIN 3150-AESO proceeding regarding any provision (or        discrimination. and explains how to file Whistleblower Protection for                 proposed provision) of the ERA or the         a complaint with the OOL.

Employees of NRC-Licensed Activities Atomic Energy Act (AEA). As a result of these legislative In 10 CFR 30.7, 40.7, 50.7, 60.9, 61.9, changes, the NRC concluded that its 70.7, 72.10, and 150.20, the following AGENCY: Nuclear Regulatory changes were proposed to reflect the Commission. regulations in 10 CFR parts 19, 30, 40, 50, 60, 61, 70, 72, and 150 should be new legislation: ACTION: Final rule. updated to conform to the new (1) The applicable section 210 is

SUMMARY

The Nuclear Regulatory legislation. Accordingly, on June 15, renumbered as section 211.

Commission (NRC) is amending its 1993 (58 FR 33042), the Commission (2) The defmition of proteded regulations regarding the protection of published in the Federal :Register activities ls modified to reflect the employees who provide information to proposed changes to these Parts to provisions of the Energy Policy Act of the NRC or their employers concerning reflect the changes in the whistleblower 1992. 19-SC-12

PART 19

• STATEMENTS OF CONSIDERATION (3) The period in which a complaint § 50.7(c). In particular, the proposed IV. Environmental Impact: Categorical can be filed with DOL is changed from rulemaking would add a subsection in Exclusion 30 days to iao days. each applicable section, e.g. 50.7(e)(2), The NRC has detennined that this (4) References in certain sections of that stated NRC's expectation that all the regulations to "compensation, tenns, licensees will notify their contractors of . final rule is the type of action described

. conditions, and privileges of                                                                    in categorical exclusion 10 CFR
                                                . the prohibition. against discrimination          51.22(c)(2). Therefore, neither an employment" are being changed to                for engaging in protected activities.
  "compensation, terms, conditions, or                                                             environmental impact stat~ment nor an Winston & Strawn commented that privileges of employment." This change there is n.o need for this provision since, environmental assessment has been is necessary to correct earlier language                                                         prepared for the final rule.

in its view, th.a existing regulatory to conforin to the language in the ERA framework provides ample incentives V. Paperwork Reduction Act Statement of 1974, as amended"' for licensees to notify their contractors (5) The exemption in§§ 30.7, 40.7, The final rule does not contain new and 70.7, fonnally exempting general of the prohibitions on discrimination. or amended information collection licensees from the requirement to post Winston & Strawn's basic concern, requirements subject to the Paperwork NRC Form 3, ls being deleted because however, ls that these proposed Reduction Act of 1980 (44 U.S.C. 3501 soine general licensees are subject to subsections do not specify in any detail et seq.). Existing requirements were part 19. the licensee's contractor notification approved by the Office of Management (6) The part 150 NRC general license, requirements and yet the NRC may seek and Budget, approval numbers 31'50-

• recognizing Agreement State licenses, to take enforcement action against a 0044, -0017 I -0020, -0011, -0127 t would be amended to conform to. the licensee for violations of the notification -0135, -0009, -0132, and 0032.

changes to§§ 30.7, 40.7, and 70.7.

• provision. VI. Regulatory Analysis (6) Each applicable regulation would It should be noted that the NRC be amended to.provide that licensees The Commission finds that there is no continues to find instances of contractor alternative to amending the regulations and applicants are expected to notify discrimination which indicate that there their contractors of the prohibition because most*of the amendments are is a continuing need for licensees to
• statutorily mandated as required by the against discrimination for engaging in work with their contractors to eliminate protected activities. Energy Policy Act of 1992, The final As provided in 10 CFR 30.7(c),. discrimination. A basic need in this area
• rule is intended to confonn the 40.7(c), 50.7(c), 60.9(c}, 61.9(c), 70.7(c), is for contractors to be fully apprised of Commission's regulations to the nuclear and 72.lO(c) of these regulations, their responsibilities and the wbistleblower provisions of the Energy licensees and applicants may be subject prohibition on discrimination. The Policy Act of 1992. The final rule to enforcement action for discrimination intent of these subsections was to extends and clarifies.protection to new caused by their contractors or prompt licensees to take whatever classes of employees and employers and subcontractors. actions they believe to be necessary to extends th& period in which an ensure that their contractors are employee may file a whistleblower

m. Public Comments and the informed of the prohibitions against complaint. The foregoing constitutes the Commission's llesponse discrimination, not to impose rigid or regulatory analysis for the final rule.

The June 15, 1993 proposed rule prescriptive requirements as to how, VII. Regulatory Flexibility Certification resulted in the receipt of comments when or how often licensees are tb from the Nuclear Management and notify their contractors of the

• As required by the Regulatory Resources Council (NUMARC), the prohibitions. Flexibility Act of 1980 (5 U.S.C. 605(b)),

International Union, United Plant Guard The proposed notification the Commission certifies that this rule Wor)<ers of America (UPGWA), and the requirement was not expressed in does not have a significant economic law firm of Winston Ile Strawn who mandatory language, rather the language impact on a substantial number of small commented on behalf of four nuclear used provided NRC's expectation. Th,is entities. The final.rule conforms the utilities. (Copies of the three comment may make enforcement difficult. Commission's regulations to the nuclear letters are available for inspection in the Therefore, rather than emberk on a new whistleblower provisions of the Energy NRC Public Document Room, 2120 L rulemaking at this time to provide more Policy Act of 1992. Street. NW. (Lower Level) Washington, DC). specificity, the language will be deleted. vm. Backfit Analysis Two of the comments were similar in However, the NRC continues to believe The Nuclear Regulatory Commission nature. NUMARC commented that the that it is in the interest of the public has determined that the backfit rule, 10 NRC's rule changes appear to meet the health and safety that each licensee tak11 CFR 50.109, does not apply to the final Commission's intent to conform the *sufficient steps to assure that its rule and that a backlit analysis is not regulations to the new statutory contractors are aware of the prohibitions required for the final rule because these requirements. The UPGWA indicated against discrimin.ation. The need for amendments are required by law and/or that it enthusiastically supports the rule rulemaking on this notification matter do *not involve any provisions which changes and hopes that the rules will be may be revisited following the would impose back.fits as defined in 10 vigorously and strictly enforced. Both completion of the stafrs report to the CFR 50.109(a)(1). commenters were genemlly supportive Commission on its reassessment of the NRC program for protecting allegers List of Subjects . of the proposed rule and provided no comments on specific provisions. against retaliation. 58 FR 41108 (August 10 CFR Part 19-Criminal penalties, On the other hand, Winston & Strawn, 2, 1993). The NRC emphasizes, Environmental protection, Nuclear while recognizing that most of the however, regardless of whether a materials, Nuclear power plants and proposed changes are required by the notification provision is specified in the reactors, Occupational safety and Energy Policy Act of 1992, focused on regulations, licensees will be subject to health, Radiation protection, Raporting the proposal in 10 CFR 50.7(e) and the enforcement actions for discrimination and recom.Jceeping requirements, Sex related enforcement provision in caused by their contractors. discrimination.

• 19-SC-13

PART 19

• STATEMENTS OF CONSIDERATION JO CFR Part 30-Byproduct material, 58FR54646 60 FR36038 Criminalpenalties, Government Published 10/22/93 Published 7/13/95 contracts, Intergovernmental relations, Effective 8/14/95 Isotopes, Nuclear materials, Radiation Radiation Protection Requirements:

protection, Reporting and recordkeeping 10 CFR Parts 19, 30, 40, 50, 60, 61, 70, 72,and 150 Amended Definitions and Criteria requirements. 10CFR Part 4o-crlminal pe~alties, RIN 3150-AE50 See Part 20 Statements of Consideration Government contracts, Hazardous materials transportation, Nuclear Whistleblower Protection for materials, Reporting and recordkeeping Employees of NRC-Licensed Activities requirements, Source material, Uranium. Correction 10 CFR Part SO-Antitrust, Classified 61 FR 6762 information, Criminal penalties, Fire In rule document 93-24787 beginning Published 2/22/96 protection, Intergovernmental relations, on page 52406 in the issue of Friday Effective 4/22/96 Nuclear power plants and reactors, October 8, 1993, ma1ce the following Radiation protection, Reactor siting correction: 10 CFR Parts 19, 30, 40, 50, 60, 61, 70, criteria, Reporting and recordkeeping On page 52406, in the third column, and 72 requirements. in the EFFECTIVE DATE:, in the first line, 1o CFR Part Bo-criminal penalties, "October 8, 1993." should read RIN 315D-AF45 High-level waste, Nuclear power plants "November 8, 1993." and reactors, Nuclear materials, Employee Protection Policies; Minor Reporting and recordkeeping Amend merits requirements, Waste treatment and disposal. AGENCY: Nuclear Regulatory 10 CFR Part 61-criminal penalties, 58 FR 67657 Commissiolll, Low-level waste, Nuclear materials, Published 12/22/93 ACTION: Direct final rule. Reporting and recordkeeping Effective 1/1 /94 requirements, Waste treatment and

SUMMARY

The Nuclear Regulatory disposal. Standards for Protection Against Commission (NRC) is amending it'!i 10 CFR Part 7o-criminal penalties, Radiation; Removal of Expired Material regulations related to notices to workers Hazardous materials--transportation, and to emplloyee protection policies.

Material control and accounting, See Part 20 Statements of Consideration This action is necessary to require the Nuclear materials, Packing and use of an updated NRC Form 3, update containers, Radiation protection, a telephone number, and to clarify the Reporting and recordkeeping applicability of employment requirements, Scientific equipment, discrimination policies. 59 FR41641 Security measures, Special nuclear Published 8/15/94 EFFECTIVE DATE: The final rule is material. 1o CFR Part 72-Manpower training Effective 8/15/94 effective April 22, 1996, unless programs, Nuclear matedals, significant E1dverse comments are Standards for Protection Against received by March 25, 1996. lfthe Occupational safety end health, Radiation; Clarification Reporting and recordkeeping effective date is delayed, timely notice requirements, Security measures, Spent See Part 20 Statements of Consideration will be published in the Federal fuel. Register. 10 CFR Part 150-Criminal penalties, ADDRESSES: Mail comments to: Hazardous materials-transportation, Secretary, U.S. Nuclear Regulatory Intergovernmental relations, Nuclear 59 FR48944 Commission, Washington, DC 20555-materials, Reporting and recordkeeping Published 9/23/94 0001, Attention: Docketing and Service requirements, Security measures, Effective 10/24/94 Branch. Hand deliver comments to Source material, Special nuclear 11555 Rockville Pike, Maryland, material. Certification of Gaseous Diffusion between 7:45 am and 4:15 pm on For the reasons set out in the Plants Federal workdays. preamble and under the authority of the See Part 76 Statements of Consideration For infonnation on submitting Atomic Energy Act of 1954, as amended, comments electronically, see the the Energy Reorganization Act of 1974, discussion under Electronic Access in as amended, and 5 U.S.C. 552 and 553, the Supplementary Information Section. the NRC is adopting the following 60 FR 24549 Copies of any comments received may amendments to 10 CFR parts 19, 30, 40, Published 5/9/95 be examined at the NRC Public 50, 60, 61, 70, 72, and 150, Effective 5/9/95 Document Room, 2120 L Street NW (Lower Level), Washington, DC. Changes to NRC Addresses and Telephone Numbers FOR FURTHEFJ INFORMATION CONTACT: Mark Haisfield, Office of Nuclear See Part 2 Statements of Consideration Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0IOOl, telephone (301) 415-6196, e-mail MFH@NRC.GOV. 19-SC-14

PART 19

• STATEMENTS OF CONSIDERATION SUPPLEMENTARY INFORMATION: parity to none, data bits to 8, and stop Procedural Background bits to 1 (N,8,1). Using ANSI or VT-100 Because NRC considers this action Background terminal emulation, the NRC NUREGs noncontroversial and routine, we are The purpose of these amendments to and RegGuides for Comment subsystem 10 CFR Part 19, and related sections, is approving it without seeking public can then be accessed by selecting the comments on proposed amendments.

to promulgate a change to incorporate a "Rules Menu" option from*the "NRC reference to the most recent revision of This action will become effective on Main Menu." For further information April 22, 1996. However, if the NRC NRC Form 3, update a telephone about options available for NRC at receives significant adverse comments number, and clarify the applicability of FedWorld, consult the "Help/ by March 25, 1996, then the NRC will employment discrimination policies to Information Center" from the "NRC publish a document that withdraws this 10 CFR Parts 61 and 76. Main Menu." Users will find the action, and will address the comments NRC regulations in § 19.11, "Posting "FedWorld Online User's Guides" received in response to the requested of notices to .workers," specify the June particularly helpful. Many NRC 1993 revision ofNRC Form 3, "Notice revisions which have been proposed for subsystems and databases also have a approval *and are being concurrently to Employees," end an old NRC "Help/Information Center" option thot telephone number for obtaining NRC is tailored to the particular subsystem. published in the proposed rules section Form 3. A new version of the form was The NRC subsystem on FedWorld can of this Federal Register. Comments will issued in January 1996, and because also be accessed by a direct dial phone be addressed in the final rule. on this licensees and applicants are required to number for the main FedWorld BBS, .proposal. The NRC will not initiate a prominently post the most current 703-321-3339, or by using Telnet via *second comment period on this action.* version ofNRC Form 3, § 19.11 is being Internet, fedworld.gov. If using 703- Environmental Impact: Categorical updated. Related sections in Parts 30, 321-3339 to contact FedWorld, the NRC Exclusion 40, 50, 60, 61, 70, and 72 also have the subsystem will be accessed from the The Commission has determined that old NRC telepltone number and are main FedWorld menu by selecting the this final rule is the type of action being updated. "Regulatory, Government* described in categorical exclusions 10 Tlie primary differences between the Administration and State Systems," CFR 51.22(c)(1), Therefore, neither an old and new NRC Form 3 are related to then selecting "Regulatory Information environmental impact statement nor an reporting violations and safety concerns, Mall." At that point, a menu will be environmental assessment has been the addition of an NRC Safety Hotline displayed that has an option "U.S. prepared for this final rule. and other NRC toll-free numbers, what . Nµclear Regulatory Commission" that constitutes discrimination, the will take you to the NRC Online main Paperwork Reduction Act Statement realignment of NRC Regions, and the menu. The NRC Online area also can be This final rule does not contain a new actions NRC w.m take for allegations of accessed directly by typing "/go nrc" at or amended information collection harassment, intimidation, or a FedWorld command line. If you access requirement subject to the Paper discrimination. NRC from FedWorld's main menu, you Reduction Act of 1995 °(44 U.S.C. 3501 NRC regulations in § 19.20, may return to FedWorld by selecting the et seq.). Existing requirements were "Employee protection," were adopted in "Return to FedWorld" option from the approved by the Office of Management July 1982. Part 61, "Licensing NRC Online Main Menu. However, if and Budget, approval 3150-0044, 10 Requirements for Land Disposal of you access NRC at FedWorld by using CFRPart 19; 3150-0017, 10 CFRPart 30; Radioactive Waste," was adopted in . NRC's toll-free number, you will have 3150-0020, 10 CFR Part 40; 3150-0011, 1982 (47 FR 57446; December 27, 1982); full access to all NRC systems but you 10 CFR Part 50; 3150-0127, 10 CFR Part and Part 76, "Certification of Gaseous will not have access to the main 60; 3150-0135, 10 CFR Part 61; 3150-Diffusion Plants," was adopted in 1994 FedWorld system. 0009, 10 CFR Part 70; and 3150--0132, (59 FR 48944; September 23, 1994). If you contact FedWorld using Telnet, you will see the NRC area and menus, 10 CFR Part 72. Both Parts 61 and 76 adopted the July 1982 employee protection provisions including the Rules menu. Although Publlc Protection* Notification incorporated into Parts 30, 40, 50, 60, you will be able to download The NRC may not conduct or sponsor, 70, and 72. Section 19.20 is being documents and leave messages, you will and a person is not required to respond updated to tefer to Parts 61 and 76 for not be able to write comments or upload to, a collection of information unless it consistency and clarification of files (comments). If you contact displays a currently valid 0MB control employee protection policies. FedWorld using FTP, all files can be number. accessed and downloaded but uploads Electronic Access ar~ not allowed; all you will see is a list Regulatory Analysis Comments may be submitted of files without descriptions (normal A regulatory analysis has not been electronically, in either ASCII text or Gopher look). An index file listing all prepared for this Direct Final Rule Wordperfect format (version 5.1 or files within a subdirectory, with because this rule is considered minor later), by calling the NRC Electronic descriptions, is included. There is a 15- and not a substantial amendment; it has Bulletin Board on FedWorld. The minute time limit for FTP access. no economic impact on NRC licensees bulletin board may be accessed using a Although FedWorld can be accessed or the public. personal computer, a modem, and one through the World Wide Web, like FTP of the commonly available that mode only provides access for Regulatory Flexibility Certification communications software packages, or downloading files and does not display As required by the Regulatory directly via Internet. the NRC Rules menu. Flexibility Act of 1980, 5 U.S.C. 605(b), If usmg a personal computer and For more information on NRC bulletin the Commission certifies that this rule modem, the NRC subsystem on boards call Mr. Arthur Davis, Systems does not have a significant economic FedWorld can be accessed directly by Integration and Development Branch, impact upon a substantial number of dialing the toll free number: 1-800- U.S . .Nuclear Regulatory Commission, small entities. 303-9672. Communication software Washington, DC 20555, telephone (301) Any small entity subject to this parameters should be set as follows: 415-5780; e-mail AXD3@nrc.gov. regulation which determines that, 19-SC-15

PART 19

• STATEMENTS OF CONSIDERATION because of its size, it is likely to bear a
• Reporting and recordkeeping Section-, Rules Review and Directives disproportionate adverse economic requirements. Branch, Division of Freedom of impact should notify the Commission of 10 CFR Part 60 Information. and Publications Services, this in a comment that indicates the Office of Administration, U.S. Nuclear following: Criminal penalties, High-level waste, Regulatory Commission, Washington, (a) The licensee's size and how the Nuclear power plants and reactors, DC 20555, Telephone (3011415-7163.

regulation would result in a significant Nuclear materials, Reporting and recordkeeping requirements, Waste SUPPLEMENTARY INFORMATION: economic burden upon the licensee as compared to the economic burden on a treatment and disposal. Background larger licensee. _ 10 CFR Part 61 The Nuclear Regulatory Commission (bl How the regulations could be is amending the regulations in 10 CFR modified to take into account the Criminal penalties, Low-level waste, Nuclear materials, Reporting and Parts 19, 30, 51, 52, and 55 to correct licensee's differing needs or capabilities. several miscellaneous errors in recordkeeping requirements, Waste (cl The benefits that would accrue, or treatment and disposal. regulatory t1pct. These changes in CFR the detriments that would be avoided, if text occurred in the process of preparing the regulations were modified as 1 O CFR Part 70 and printing of rulemaking documents. suggested by the licensee. Criminal penalties, Hazardous In particular, under§ 30.72, Schedule (dl How the regulation, as modified, materials transportation, Material C, the entry for C-14 only applies to would more closely equalize the impact control and accounting, Nuclear non-carbon dioxide forms. This rule was of regulations or create more equal materials, Packaging and containers, first published in the Federal Register access to the benefits of Federal Radiation protection, Reporting and on April 7, 1989 (54 FR 14051) and the programs as opposed to providing recordkeeping requirements, Scientific explanatory note.for C-14 in the table, special advantages to any-individual or equipment, Security measures, Special as printed in the final rule, appears to group.

• nuclear material. read non CO," rather than "non CO2."

(el How the regulation, as modified, In a subsequent reprinting of§ 30.72 in would still adequately protect public 10 CFR Part 72 the Code of Federal Regulations, this health and safety. Manpower training programs, Nuclear note was inadvertently omitted. This Backfit Analysis materials, Occupational safety and correction replaces the explanatory note health, Reporting and recordkeeping for the C-14 entry in the table. The NRC has determined that the requirements, Security measures, Spent Because this is an amendment dealing backfit rule, 10 CFR 50.109, does not fuel. with agency organization, practice, and apply to this rule, and therefore, a For the reasons set out in the procedure, the notice and comment backfit analysis is not required because preamble and under the authority of the. provisions of the Administrative these amendments do not involve any Atomic Energy Act of 1954, as amended, Procedure Act do not apply pursuant tu provisions that would impose backfits the Energy Reorganization Act of 1974, 5 U.S.C. 553(bl(Al. The amendment is as defined in 10 CFR 50.109(al(1l. as amended, and 5 U.S.C. 552 and 553, effective upon publication in the List of Subjects the NRC is adopting the following .Federal Regieter. Good cause exists to amendments to 10 CFR Parts 19, 30, 40, dispense_ with the usual 30-day delay in 10 CFR Part 19 50, 60, 61, 70, and 72. the effective date because the Criminal penalties, Environmental amendment is of a minor and protection, Nuclear materials, Nuclear administrative nature dealing with power plants and reactors, Occupational corrections to certain CFR sections. safety and health, Radiation protection, Reporting and recordkeeping Environmental Impact: Categorical 61 FR 9901 Exclusion requirements, Sex discrimination. Published 3/12/96 Effective 3/12/96 The NRC has determined that this 10 CFR Part 30 final rule is the type of action described Byproduct material, Criminal in categorical exclusion 10 CFR penalties, Government contracts, 10 CFR Parts 19, 30, 51, 52, and 55

• 51.22(c)(2). Therefore, neither an Intergovernmental relations, Isotopes, RIN 3150-AF42 environmental impact statement nor an Nuclear materials, Radiation protection, environmental assessment has been Reporting and recordkeeping Minor Correcting Amendments prepared for this final rule.

requirements. AGENCY: Nuclear Regulatory Paperwork Reduction Act Statement 10 CFR Part 40 Commission. This final rule does not contain a new Criminal penalties, Government ACTION: Final rule. or amended information collection contracts, Hazardous materials requirement subject to the Paperwork

SUMMARY

The Nuclear Regulatory transportation, Nuclear materials, Reduction Act of 1995 (44 U.S.C. 3501 Commission (NRCl is amending its et seq.). Existing requirements were Reporting and recordkeeping regulations to correct several requirements, Source material, Special approved by the Office of Management miscellaneous errors in the Code of and Budget, approval numbers 3150-nuclear material. Federal Regulations (CFRl. This 0044, -0017, -0021, -0151, and-0018.

10 CFR Part 50 document is necessary to inform the public of these corrective changes to List of Subjects Antitrust, Classified information, NRC regulations. Criminal penalties, Fire protection, 10 CFR Part 19 Intergovernmental relations, Nuclear EFFECTIVE DATE: March 12, 1996. Criminal penalties, Environmental power plants and reactors, Radiation FOR FURTHER INFORMATION CONTACT: protection, Nuclear materials, Nuclear protection, Reactor siting criteria, Michael T. Leser, Chief, Rules Review 19-SC-16

PART 19

• STATEMENTS OF CONSIDERATION power plants and reactors, Occupational safety and health, Radiation protection, Reporting and recordkeeping requirements, Sex discrimination.

1ci<;:FR Part 30 Byproduct material, Criminal penalties, Government contracts, Intergovernmental relations, Isotopes, Nuclear materials, Radiation protection, Reporting and recordkeeping requirements. 10 CFR Part 51 Administrative practice end procedure, Environmental impact statement, Nuclear materials, Nuclear power plants end reactors, Reporting and recordkeeping requirements. 10 CFR Part 52 Administrative practice end procedure, Antitrust, Backfitting, Combined license, Early site permit, Emergency planning, Fees, Incorporation by reference, Inspection, Limited work authorization, Nuclear power plants and reactors, Probabilistic . risk assessment, Prototype, Reactor siting criteria, Redress of site, Reporting and recordkeeping requirements, Standard design, Standard design certification. 10 CFR Part 55 Criminal penalties, Manpower training programs, Nuclear power plants and reactors, Reporting and . recordkeeping requirements. For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S,C. 552 and 553; the NRC is adopting the following amendments to 10 CFR Parts 19, 30, 51, 52, and 55. 19-SC-17

UNITED STATES NUCLEAR REGULATORY COMMISSION RULES and REGULATIONS TITLE 10, CHAPTER 1, CODE OF FEDERAL REQULATIONS-ENERGY

    ~                            STANDARDS FOR PROTECTION AGAINST RADIATION
     ~                                        STATEMENTS OF CONSIDERATION 52 FR 4601                                                                                 *variance, and although the study defined Published 2/13/87                               chamber.s, require processing in order to Effective 2/12/88                               determine the radiation dose by             certain performance criteria, no definite observing a particular radiation-induced    standard was promulgated at that time.

10 CFR Part 20 effect in the dosimeter. These During the next few years, four separate dosimeters must be processed standards were developed, and the NRC Improved Personnel Dosimetry accurately and consistently and in 1976 contracted with Battelle to Processing interpreted correctly to ensure the a conduct *study to compare and t.GENCY: Nuclear Regulatory accuracy and integrity of worker dose evi!luate dosimetry processors against Commission. records, to ensure th.at the NRC the four existing standards. 1 Most ACTION: Final rule. regulatory dose limits of 10 CFR 20.101 dosimetry processors did no! fare well are not exceeded, and to ensure that against any or the standards. The study SUMMA.RY: The Nuclear Regulatory dosimetry is provided in accordance recommended adoption ofthe* draft Commission (NRC) is amending its with 10 CFR 20.202(a). It Is imperative, standard being developed by the Health regulations to reeiuire all licensees to therefore, that the personnel dosimetry Physics Society Standards Committee have personnel dosimetry devices that processing industry conform to (HPSSC). [This standard was published are utilized lo comply with NRC performance s:andards that will er.sure as a draft in 1978.) regulations prqcessed by processors that accuracy and uniformity of results. In 1976, al the urging of the have been accredited by the Na lional Conference of Radiation Control Voluntary Laboratory Accreditation Dosimetry Processor Pe.jor;nance Program (NVLAP) of the National Studies Program Directors (CRCPD) Bureau of Standards [NBS). This action Problems in the personnel dosimetry (reprei.enting the Stat!ls), the NRC, the was initialed because performance processing industry have been apparent Bureau of Radiological Health, and the evaluations of personnel dosimetry for many years. The commercial Energy RP.search and Development processors indicated that a significant processing business has always been Agency jointly conducted a public percentage of such processors were not highly competitive, with competent and meeting to discuss personnel dosimetry performing with a reasonable degree of conscientious processors competing problems. As a result or the accuracy. These amendments will result with processors that are unable or recommendations made at this meeting, in greater uniformity and accuracy in unwilling lo perform this work in a the NRC contracted with the University personnel dosimetry. technically sound manner. Customers of of Michigan to conduct two rounds EFFECTIVE DATE: February 12;1988. commercial processors, however, have [1977-1979) of proficiency testing of often lacked expertise in dosimetry dosimetry processors against the draft. FOR FURTHER INFORMATION CONTACT: processing and often contracted their HPSSC standard. Fifty-nine personnel Donald 0. Nellis. Dh-ision of Regulatory dosimetry processors voluntarily Applications, Office of Nuclear processing needs to the lowest bidder, so that the more qualified processors participated in these tests. Results or the Regulatory Research, U.S. Nuclear tests showed that the standard should Regulatory Commission. Washington, may have had to recluce the quality of their services in order to remain be modified. (It was modified in June DC 20555, Telephone: (301) 443-7989. Inquiries regarding the accreditation competitive. 1981 and was published as ANSI N13.11 program for personnel dosimeters at the Some problems became apparent in 1983.) The results also showed that a National Bureau of Standards should be shortly after the Atomic Energy Act of significant percentage of the processors addressed lo Robert L. Gladhill, 1954 authorized the commercial were not performing to the degree of National Voluntary Laboratory application of nuclear technology when accuracy acceptable to the NRC, which Accreditation Program (NVI.AP), the first intercomparison of film badge indicated, in tum, that records and National Bureau of Standards, interpretations was conducted by NBS reports of worker whole body and skin Administration A-531, Gaithersburg. in 1955 under an-Atomic Energy dose could be considerably different MD 20899, telephone: (301) 921-3431. Commission [AEC) contract. In 1963, the from the actual dose received. It became AEC published a notice in the Federal apparent to the NRC that the SUPPLEMENTARY INFORMATION: Register (28 FR 9411) outlining the need performance and competency of L Background for a Film Dosimetry Calibration dosimetry processors had to be Personnel dosimeters are devices Laboratory and provided some interim evaluated on a periodic basis and that worn by workers lo monitor their film dosimetry performance criteria. rulemaking was needed to ensure this exposure to radiation. NRC licensees Subsequently, several studies attempted periodic evaluation. are required to provide such monitoring lo evaluate processor performance, but no method of comparing actual Coordinatlon Efforl devices lo certain individuals as specified in 10 CFR 20.202[a) end other* performance with the interim Cooperation and coordination with applicable provisions of 10 CFR Chapter performance criteria was ever other interested organizations were I. established. Consequently, the AEC initiated in 1977 with the formation of Among the types of monitoring . requested in 1967 that Battelle equipment in use are dosimeters such as *Northwest Laboratory, now called 1 M. Unruh. el 11L ""The E&tabliihment and film badses, track-etch-type dosimeters, Pacific Northwest Laboratory, conduct a study to determine a basis for film Utilization or FIim Do&lmelerPeriormence Criteria." thermoluminescent dosimeters (TLD's), BNWlr542{1967] 1Uchlarid. We1hlng!D11. 993SZ. dosimeter performance criteria.' and direct and indirect reading pocket 1 LL Nichols. "A Te,t or the Performance or ionization chambers. All of these, with Although the study revealed that PenoMel Do1lmetera." BNWL-z:159{11177) B11tell1 the exception of the pocket ionization about 85% of the participating North.weal Leboratorle1. Richland. Wa,hinBtoa. processors hl!d excessive bias an_d 9935Z. 20-SC-1

PART 20

• STATEMENTS OF CONSIDERATION the Interagency Policy Committee on for laboratories controlled by"lhe the actual dose at the 95% confidmce Personnel Dosimetry, which included Federal government (alternatives 2, 3, or . level. .

the Department of Defense, the 4). Commenters also inquired and In December 1980, the NRC asked the Department of Energy, the commented on control of the testing DOC to establish, in coordination with Environmental Protection Agency, the laboratory, on procedures to be used in NRC staff, an accreditation program l\113S. the Occupational Safety end the regulatory program, and on various under NVLAP for personnel dosimetry Health Administration of the other problems that could result from a processors. In accordance with NVLAP Department of Labor, the Center for processor failing to satisfy the procedures and authority [15 CFR Part Devices and Radiological Health of the established criteria. Several discussed 7), the DOC published NRC's request (46 Food and Drug Administration of the the importance of defining and requiring FR 96B9) for development of such a Department of Health and Human minimum elements of a generic quality Laboratory Accreditation Program (LAP) Services, the CRCPD, end the NRC. assurance program that should be

• on January 29. 1961 and requested public Cooperation and coordination with the established as part of the dosimetry ** comment. NRC sent a copy of the DOC dosimetry processing industry were also processing performance criteria. The Federal Register Notice and a enhanced in 1977 with the formation of major technical questions raised were description of the NVLAP to r.11 known the Industrv Overdew Committee on those concerning the selection of dose dosimetry processors and interested Personnel Dosimetry to monitor the conve:-sion factors within the standard. persons *on Fe'bruary 6, l981. All 19 progress and development of the Several of the commenting dosimetry lelters of comment received were evaluation program and to ensure that processors also requested a third round unanimous in their approv.:l of the any regulatory 11ction lakeri would be of performance testing to allow NVL~P alternative. Consequently the appropriate an*a *e!fective. processors to be tested against the NVLAP dosimetry LAP was sfarled in revised HPSSC slenda1d before any 1961 under an Interagency Agreement Advance Notice of Proposed rulemaking on dosimeter)' proc.essing Rulemaking between NRC and NBS, and a became effective. proficiency testing laboratory was On March 28, 1980, the NRC took the Notional Voluntary Lal,oratory contracted by the NBS. Proficiency initial slep in the rulemaking process Accreditation Prog,-am (l'lVL4.P) testing and N\'LAP accreditation of with the publication in the Federal Alternative processors began in January 1984.

Regis!er of an Advance Notice of Proposed Rulemaking [A.t>.JPRM)

                            .      [45 FR        During the comment period for the        Additional Performance Testing 20493). The ANPRM discussed the                A.~PRM, a fifth alternative for the operation of a proficiency testing               Since the original HPSSC standard results of the proficiency testing against                                                 was significantly revised following the the HPSSC standard and the need for            laboratory that would utilize the NVLAP of the NBS was identified by the            two pilot tests, the NRC staff sponsored rulcmaking to improve dosimetry                                                            a third round of performance testing processing. It presented four                  Interagency Policy Committee. NBS. in accordance with NVLAP procedures             against ANSI N'.13.11, which was*

alternatives for the operation of a completed in 1963. 3 Seventy personnel proficiency testing laboratory that specifiad in 15 CFR Part 7, would c;ontract the services of a proficiency dosimetry processors voluntarily would conduct perfonnance testing participated in this round. The standard against the HPSSC standard. The testing laboratory to administer proficiency testing of dosimetry . provides a total of eight radiation A.'\'PRM specified that any proficiency categories involving high-energy and testing laboratory established would be processors against a performance standard specified by the NRC [in this low-energy photons, beta particles,

• monitored for technical competency by neutrons, and mixtures of these. The the NBS and that licensees would be case ANSI N13.11).

The process of accreditation procedure was for a processor to send required to use dosimetry services that 15 dosimeters for each test category in satisfied criteria established by NRC according to NVLAP procedures would require three separate actions: (1) which it wished to be tested to the and administered by the proficiency testing laboratory. These dosimeters testing laboratory. The four alternatives Completion of a NVlAP questionnaire and other application materials that were then irradiated with doses known for proficiency testing laboratory only to the testing laboratory and c;:,erations as descrlbed in the A.l'l;PRM invoJve documentation of responsible personnel, equipment, facilities and returned to the processor. NBS had the were:

1. Processors and licensees would quality control procedures; (2) responsibility of verifying the accuracy establish one or more laboratories to successful performance in dosimetry of the irradiations performed by the administer proficiency testing against proficiency testing in accordance with testing laboratory. The processor then the HPSSC standard. ANSI N13.11, "Criteria for Testing determined the dose for each dosimeter

2. The proficiency testing laboratory Personnel Dosimetry Performance"; and and reported the results back lo the would be a Federal Government facility (3) onsite inspection by NVLAP testing laboratory for evaluation against managed and operated by the NRC. assessors of the processor's routine the standard. The testing laboratory

3. The J,j'JlC would contract the dosimetry service with respect to , evaluated the processor's performance services of a proficiency testing processing protocols and associated in accordance with the performance laboratory.

• minimum quality assurance criteria criterion specified in ANSI N13.11. Of

4. Another Federal agency specified in NVLAP general and specific the category tests attempted, an average experienced in laboratory testing would criteria and supplied to the processor of 25% failed. This compares to failure operate the proficiency testing upon application for the program. rates of 52% for the first test and 38% for laboratory. NVLAP would thus offer a system of the second, as measured against the third-party accreditation by a Federal final standard.

Analysis of Comment Letters Government agency, namely, the Although the identity and individual Forty-six comment letters were Department of Commerce (DOC) results of the dosimeter test data were received in response to the ANPRM. operating through the NBS. In addition, confidential to the proficiency testing Twenty-one did not state a preference the paFs-fail criterion for accreditation laboratory, the contractor reported that for which alternative should be used in ensures that the mean of the reported the categories failed in this third round establishing a proficiency testing doses will be within +/-50% of the actual of testing were evenly distributed among laboratory and three fell no proficiency dose at the 95% confidence level. and !arge and ~mall commercial and in-testing program was necessary._ Of the that at least 90% of the individual reported doses will be within +/-95%.of

• Plato, P. and J. Miklos, Perfonr.ance Tesi11111 or remaining 22, 20 expressed a preierence Personnel Dosimeby Services: Final ReporfofTe1t

                                                                                           .;:3," NUREG/CR 2891, February 1983.

20-SC-2

PART 20

• STATEMENTS OF CONSIDERATION
• house processors. In light of the results have their primary dosimeters processed other app!ir.able regulations) may apply from the three pilot tests, the NRC by a commercial processor, and to for a license amendment to delete this concluded that improvement on the part terminate dosimetry services not r~quirement from the license before the of most dosimetry processors was required by 10 CFR 20.202[a). Other effective date of the rule. Nothing in this needed and the regulations should be commenters stated that a differential fee regulation precludes a licensee from amended not only to provide for structure is needed to provide relief to providing voluntary dosimetry services periodic evaluation but also to include small processors, that the onsite whether such dosimetry utilizes checks of a processor's quality assessment should be waived for small accredited processing or not. The assurance program to improve the processors as a means of reducing costs, Commission, however. encourages the quality of personnel dosimetry and that the proposed § 20.202[c)(2) use of accredited processing for processing. should be clarified by issuance of a voluntary dosimetry in order to provide Regulatory Guide to assist licensees to the desired accuracy and reliability for

11. Proposed Rule determine in which radiation categories an dose records. Afler the effective date In view of the comments received in they should be accredited. of the rule, dosimetry required by response to the ANPRM and the In regard to the suggestion that onsite license conditions (which may reference unanimous a ppr-oval of the NVLAP assessment be waived for small commitments made in license alternative, the NRC published on processors, accreditation in the testing applications) must be provided by an January 10, 1984, a Notice of Proposed program under appropriate categories, accredited dosimetry processor.

Rulemaking [NPRM) (49 FR 1205) that as emphasized in the proposed new With respect to clarifications that would require NRC licensees to use the § 20.202[c)(2), does not in itself ensure would enable licensees to determine ser\'ices of dosimetry processors that that the processor applies the same care which radiation categories apply to their have been accredited by the NVLAP of and attention to routine dosimetry operations, it should be pointed out that NBS. Five alternatives were considered processing as it does to test dosimeters. it has always been the responsibility of in drafting the NPRM, and an analysis of The onsite visits conducted by NVLAP the licensee to _provide appropriate and each of these is included in the assessors are not only a part of the properly calibrated personnel Regulatory Analysis, which is available mechanism for detecting sources of monitoring devices. The rule to require for inspection and copying for a fee at variability under the control of the NVLAP accreditation does not alter this the NRC Public Document Room located processor, they also serve to check on responsibility. In view of the comments at 1717 H Street NW., \l\.'ashington. DC. the quality a*ssurance program of the received, however, the NRC plans to Ill. Summary of Public Comments processor as it applies to routine issue supplementary information to help dosimetry and ensure that equivalent licensees to determine appropriate The NRC received 96 comment letters care is given both to routine dosimetl'y on the proposed rule, some of which testing categories for their specific _processing and to test dosimetry operations. were duplicates, leaving a net of 93 processing. It is for these reasons that letters. manv of which contained more It is recognized that even the the onsite visits cannot be waived for. minimum fees charged by l\'VLAP can than one comment. the small or in-house processors. All of the public comments have \;>een seriously affect small dosimetl'y

                                              .Turning to the major comment from        processors. NRC has no authority to considered, and the staff responses to    medical and hospital licensees, it is not these comments are set forth in the                                                   impose a differential fee structure since the intent of the NRC to discourage          NBS sets the NVLAP accreditation fees.

Analysis of Comments document which voluntary dosirnetl'y or redundant is available for review and copying for a These processors should be aware that dosimetry that is provided in addition to fee at the NRC Public Document Room grants may be available from the Small the required dosimetry. The subject Business Administration to assist small located at 1717 H Street NW .. regulation will not require the services Washington, DC. of an accredited personnel dosimetry businesses in paying these fees. Also, Forty commenters approved of the processor for such voluntary or licensees who believe that they should proposed rule outright, 20 commenters redundant dosimeters. It should be be exempted from the requirements of approved of the rule but identified noted that there are also other methods this rule may apply for an exemption in suggested changes or additions, and 6 of dose assessment such as surveys, accordance with 10 CFR 20.501. commenters approved of that part of the time and motion studies, or use of A number of NRC licensees have rule requiring accreditation of pocket ionization chambers that do not expressed concern that, should their processors but were opposed to require processing, all of which are personnel dosimetry processor lose requiring the licensee to retain NVLAP outside the scope of this rule. accreditation, they could be in non-certification records. (This requirement Licensees who do not make a compliance with the new regulation. The has been deleted from the final rule.) determination.as to which personnel NRC believes, however, that few, if any, Nineteen commenters were opposed to require personnel monitoring to comply dosimetry processors will lose their the proposed rule, primarily because of -with 10 CFR 20.202(a) will be required to accreditation and that accreditation loss the cost, and another eight commenter& use an accredited personnel dosimetry would be a relatively lengthy process. provided miscellaneous comments on. processor for all dosimeters that need NVLAP accreditation is given for a two-the rule. processing. Also, licensees who use year period: a processor would have A repeated comment in opposition to dosimeters to determine whether ample warning during the retesting and . the rule from medical and hospital dosimetry is routinely required under 10 renewal process that accreditation licensees appears to be the result of a CFR 20.202(a) or other relevant NRC criteria were not being met. It would be misunderstanding. These commenters regulations will be required to use the prudent for licensees to negotiate with stated that the imposition of.the

• services of an accredited processor for their processors agreements which accreditation requirement would force those test dosimeters. Those licensees require current information regarding them, on the basis of cost, to terminate that have made a commitment in their the reaccreditation process.

their in-house monitoring services, license application_ to provide personnel The NVLAP testing and accreditation which now provide supplementary or dosimetry to personnel for whom it is program has been in operation for more redundant dosimeters to personnel that not required (under 10 CFR 20.202(a) or*, than* two years; and oil the basis of this 20-SC-3

PART 20

• STATEMENTS OF CONSIDERATION r,pe1alin£ expi;rience ii hil!- l,!!1m found Commission l1as de!ermined, based on require-telephone reporting to an NRC lhal e minimum of shout iix mur,!hb is required for pr a1:es~ors 10 receive this enalysis. Iha! backfil!ing lo comply with 011, :rec;ulrem~n!s of lhiE fi;::al :-ule i&

a Regional Office. rather than central NRC office, and consequently often acc;rediti;tion. Sinc.e iac,r;,r: prt,t.!::!<SOl'S justified. A ccp)' of the bac.t!il ar. ..!y~is result in unnecessary delays before the* fail the f..rst round of testing. en is ava:!able for in~;.,ec\ic,n end copsjng event-is.reported.to an appropriate.NRC additic,nal three rnont},~ may be at the !\"RC Public Docuna:nt R.:iom official. The amendment will require

• necessary. On this bcssis, the localed et 1;:i; H Street;,.."\,\'.,

Commission hi!~ de:e:mined \hal 11n Wai.hing!on, DC. Sin~le copies may be tha~~ll telephone calls.reporting these effecth*e d&te of one y1car after ob\cined frc;m Do:iald 0. Nellis, Office significant events be directed to the publication of thii rule ir, effoctive form of Nuclear Regulatory Re!-r:arch, U.S. NRC Operations Center, thus ensuring wo;,:ld l,e n,i;!,onable. Nuclear Regulatory Comm:5~ion. Mail facility, expertise, timeliness, and J:nd1onme:ilal 1:np;;r.t: Call'gorical Stop NL-007, Washington. DC 20555, consistency in the NRC. response. Since, Exc:l:.i~ion Telepl-,one (301) H3-7989.

• about two-thirds of these licensee reports are already directed to the NRC n,e !\RC has dr:termined that this List of Subjects in 10 CFR Part 20 Operations Center, and since only the final rule is tbe ty;ie of action de~cribed

. in ca fegorical e)l.clusion 1 O CFR . Byproduct ma:e:ial, Licensed point of contact is being changed, it is 51.22(c}[3). n,erefore. neither an materiel, Nuc!ea1 ma!erials, Nuclear anticipated that the impact, if any, on em*ironr.:1mtal impact s!atemcnl nor.en power plants end reactors, Occupational affected licensees will be negligible. r:nvirrinmental Hssessmenl he~ l,e,en scfety i,nd health. Pac}. ~i;:~g end EFFECTIVE DAVE: September 9, 1987. prepared for this final rule. conlHi::iers. Pt:r,all\*. R2di11tion protection, Reporting and recordkeeping FOR FURTHER UNFORMATION CONTACT: P;;p;;:-work Red~clion l\cl Sla\ement requi;-emen\s, Sf*~cial nuclear rnalerial, Morton R. Fleishman, Senior Nuclear This final rule does not ccmiain any Source rnalerial, and \'vaste treatment Engineer, Regulation Development new or amended information collection and dii.posal. Branch, Division of Regulatory requirements subject to the P2perwork For rea~or.s ~et o:it in the preP.mble Applications, Office of Nuclear Re~uclion Act ofl!fBO (44 U.S.C. 3501 el c.nd 1mcie: lhF e:ithorit\' of tht Atomic Regulatory Research, U.S. Nuclear seq.). E~:istins re;quire:=ients we:-e Energy Ac\ of 195,, as *.. me:icied. the Regulatory Commission, Washington, appro,*ed by the Office of Ma::2g, men\ Energy Reorganization Act of 19N, as DC 20555, Telephone: 301-443-,-7975. end Budget approval number 3150--0014. amended, and 5 U.S.C. 553, the NRC is adopting the following amendments to SUPPLEMENTAl!IY INFORMATION: The NRC Regu1alocy* Anal;!,*sis 10 CFR Part 20. . requires that its nu.clear power reactor The Commission hi!~ p~ep11red a licensees have an Emergency

• regul.;\ory ar.al:,-sis on this final rule. 52 FR 8225 Notification System that provides a The an2.lysis r.Xcrnlr:ef L'ie c,os!~ and Published 3/17/87 direct telephone link to the NRC benefi!s of th 2!1e!T,i'tin*i; r.onsi:le1*ed Effective 7/14/87 Operations Center. Section 20.403[d)(1) by the Cornmis~ion. The 11nah*sis i& Licenses end Radiation Safety of 10 CFR Part 20 requires ell licensees available for inspection and cop)'ing et Requirements for Well Logging who have an installed Emergency L'ie NRC Public Document Room, 1717 H Notification System to make reports of Street NW .. Washington, DC. Single Sea Pan 39 Statemenu of Considaration various significant events involving *
• copies or the analysis ma!' be obleined from Donald 0. Nellis. Office of Nuclear byproduct, source, or special *nulcear 52 FR 31601 material to .the NRC Operations Center Regulator)* Research, U.S. Nuclear Published B/21/87 Regulatory Commission. Mail Stop NL- Effective B/19/87 in accordance with 10 CFR I 50.72. * :

007, Washington, DC 20555, Telephone: However, unlike nuclear power reactor (301) 443-7989. * . Statement of Organization and G1meral licensees, most fuel cycle and materials Regulatory Flcxibilil)' Anal)*si.5 Information licensees do not have a direct telephone

                                                                                                          *link to. the NRC Operations Center.

The NRC bi!& prepared e fine.I See Part 1 Statements o! Consideration Section 20.403{d)(2) requires these regulator)' flexibilitr analysis on the licensees to make their telephone impacl of this rule on small entities e& 52 FR 33916 reports of these significant events to the required by Section 604 of the Published 9/9/87 RegulalOJ'l' Flexibility Act. The analysis Effective 9/9/87 appropriate NRC Regional indicates that although the fine) rule Administrator. Experience has shown could have en economic impact or $7,000 10 CFR Part 20 that the current procedures often result initially. and from sa.ooo to SS.400 in on.necessary delays before the event annually on each personnel dosimetry Telephone Reporting of Significant is reported to an appropriate NRC pl'ocessor, of ,-..hic.h about 10 are smell Events Involving Byproduct, Source, official. In order to provide fuel cycle entities. the selec::ted allemative is the or Special Nuclear. Material and materials licensees with the same least cosily alternati,*e that pro,-ides degree of facility, expertise, timeliness; adequate dosimetry processing for AGENCY: Nuclear Regulatory *. and consistency in responding to the

• licensees end workers. A copy of the Commission. * * *

                                                                                                          'telephone notification that the NRC
*final regulalory fle2tibi!ity analysis is              ACTION: Final rule."                               provides to reactor licerisees, the*

a\*ailable for inspection imd'copring at Commission.has decided to direct all . the NRC Public Docurr:ent'Room. 1717 H

SUMMARY

The Nuclear Regulatory .

• Commission (NRC) is amending ite telephone calls concerning these
• Street NW., \\'ast.ington.DC. Sir.gle copies may be obtain11d from Donald 0. regulations regarding the telephone significant events involving licensed .

Nellis, Office of Nuclear-Regulatory reporting of.certain significant events material_to the NRC dperatlons Center. Research, U.S. Nuclear,Regulelory involving byproduct, source, or special Since about two-thirds of these licensee nuclear material. The amendment reports are already directed to the NRC Ct.r:",missi:m. Mail Stop NL--007, W;,shlngtor.. DC 2(*555. Telephone (301) applies lo all holders of licenses issued . Operations Center, it ie anticipated that 443-7989. for the receipt. possession, *use; or .

• the impact. if ~ny, oµ affected licensees transfer. of licensed byproduct, source, will be negligible. .

Baddil Ana!ysi1 or special nuclear material that do not

• Only the in.itial point of conta~t for.
• have an installed Emergency . -telephone calls is being* changed in, 10 As requi~ed b)* 10 CFR 50.109 (50 FR 38097). the Cc,mmission has prepared e Notification Sysfem. The amendment iii CFR 20.403[d)(2). The NRC is not backfit analys:s for the final rule. The being_made because.current procedures changing the telegram, mailgrain, or 20-SC-4

PARr 20

• STATEMENTS OF CONSIDERATION facsimile requirements in I 20.403(d)(2): 53 FR 3861 Commission, Washington, DC 20555; licensees will still be required to send - Published 2/10/88 Telephone: 301-492-7086.

Effective 2/10/88 these to the appropriate NRC Regional SUPPLEMENTARY INFORMATION: The Office listed in Appendix D of Part 20. Change of Region I Address commercial telephone number for the

.. Because this is an amendm.ent dealing                                                      NRC's Region III Office will change on with agency practice and procedures,                See Part 1 Statements of Consideration    November 11, 1989. This notice is being the notice and comment provisions of                                                         published to inform the public of the
                                                  ,53 FR 6137 . : .:i                         change in the commercial telephone the Administrative Procedure Act do not_:          'Published 3/1/88 apply pursuant to 5 U.S.C. 553(b)[A).               Effective 3/1/88 number.

• The amendment is effective upon . Because these amendments deal with

_publication in the Federal Register. Relocation of Office of Nuclear agency practice and procedures, the Good cause exists to dispense with the

• Reactor Regulation notice and comment provisions of the usual 30-day delay in the *effective date Administrative Procedure Act do not See Part 19 Statements of Consideration apply under 5 U.S.C. 553(b)(A).
• because the amendment is of a minor end administrative nature dealing with a. ~ 53 FR 17688 .
• Environmental Impact; Categorical matter of agency conduct, i.e., a change l>u bl ished 5/ 18/88 Exclusion in the location to which telephone calls Effective 5/18/88 The NRC has determined that this rule should be placed concerning significant Minor Corrective Amendments is the type of action described in events involving licensed material.
• categorical exclusion 10 CFR 51.22(c)(2).

See Part 2 Statements of Consideration En\.ironmental Impact-Categorical Therefore, neither an environmental Exclusion ,53 FR31651 impact statement nor an environmental Published 8/19/88 assessment has been-prepared for this The NRC has determined that this Effective 9/19/88 final rule.

,final rule is the type of action described iii categorical exclusion 10 CFR                   Licensing Requirements for the            Paperwork Reduction Act Statement 51.22(c)(3). Therefore, neither an                 Independent Storage of Spent Nuclear         This final rule contains no information environmental impact statement nor an              Fuel and High-Level Radioactive           collection requirements and therefore is environmental assessment has been                   Waste                                     not subject to the requirements of the prepared for this final rule.                                                                Paperwork Reduction Act of1980 (44 See Part 72 Statements of ConalderaUon   U.S.C. 3501, et seq.)

Paperwork Reduction Act Statement This final n,ile contains no information 53 FR43419 List of Subjects collection requirements and therefore is Published 10/27/88 10 CFR Part 20 not subject to the requirements-of the EffecUve 10/27/88 Paperwork Reduction Act of 1980 t44 Byproduct material, Licensed . U.S.C. 3501 et seq.). *

• Relocation of NRC's Public Document material, Nuclear materials, Nuclear Room; Other Minor Nomenclature power plants and reactors, OccupaUonel Regulatory Analysis Changes safety and health, Packaging ond containers, Penalty, Radiation *

   . A regulatocy analysis was not                   See Part 1 Statements of ConslderaUon    prot~ction, Reporti~ and recordkeeping*

prepared for this amendment to the requ1remen ts, Special nuclear *me terial, regulations. For the affeqted licensees, Source material, Waste treatment end telephone notifies lion .fonignificant 54 FR42287 Published 10/16/89 disposal.

• events is already required by the EffecUve 11 /11 /89 10 CFR Part 21 regulations and the amendment merely changes the initial point of contact. 10 CFR Parts 20, 21, and 73 Nuclear power plants and reactors, Hence, the economic impact on the Penalty, Radiation protection, Reporting licensees is insignificant. RIN 3150-AD37 and recordkeeping requirements.

Backfit Analysis 10 CFR Part 73 Change In Commercial Telephone The NRC has determined that a Number _for Region Ill Office Hazardous meterial~transportation, backfit analysis hi.not required for this Incorporation *by reference, Nuclear final rule because this amendment does AGENCY: Nuclear Regulatory materials, Nuclear po.wer.plants and-not apply to 10 CFR Part 50 licensees. Commission. reactors, Penalty, Reporting and ACTION: Final rule. recordkeeping requirements, Security List of Subjects in 10 CFR Part 20 measures. Byproduct material, Licensed

SUMMARY

The Nuclear Regulatory Commission (NRC) is amending its For the reasons set out in the*

material, Nuclear materials, Nuclear* preamble and under the authority of the

• power plants and reactors, Occupational regulations to indicate a change in the commercial telephone number for the Atomic Energy Act of 1954, as amended, safety and*health, Packaging and .* the Energy Reorganization ~ct of 1975, containers. Penalty, Radiation NRC's Region DI Office located in Glen Ellyn, Illinois. These amendments ere as amended, and 5 U.S.C. 552 and 553 protection, Reporting and recordkeeping the NRC is adopting the following . '

requirements, Special nuclear material, necessary to inform the public of these administrative changes to NRC amendments to 10 CFR pert 20, 21, and

*source material, Waste treatment and                                                         73.

disposal:. * . regulations. For the*rea.sons set ~ut-in the EFFECTIVE DATE: November 11, 1989. preamble and under the authority of the

• FOR FURTHER INFORMATION CONTACT:

Atomic Energy Act of 1954, as amended, Davi_d L. Meyer, Chief, Regulatory

• the Energy Reorganization Act of 1974, Pubhcation11 Branch, Division of as amended, and 5 U.S.C, 553, the NRC Fn!edom of Information and is adopting the following amendment to Publications Services, Office of 10 CFR Part 20. Administration, U.S. Nuclear Regulatory 20-SC-5

PART 20 STATEMENTS OF CONSIDERATION 51.22(c)(2). The_refore, neither an

SUMMARY

The Nuclear Regulatol'y 56FR944 environmental impact statement nor an Commission (NRC) is amending its Published 1/10/91 E,t_ectlve 1/10/91 environmental assessment hes been regulations to indicate a change in the prepared for this final rule. commercial telephone nwnber for the 10 CFR Parts 20 and 50 NRC's Region V Office located in Paperwork Reduction Act Statement Walnut Creek, California. These RIN 3150-AD79 This finul rule contains no information amendments are necessary to inform the Operations Center Area Code collection requirements and, therefore, - public of these administrative changes Telephone Number Change is not subject to the requirements of the - to NRC regulations.

Paperwork Reduction Act of 1980 (44 EFFECTIVE DATE: April 26, 1991. AGENCY: Nuclear Regulatory U.S.C. 3501 et seq.). FOR FURTHER INFORMATION CONTAcr. Commission. David L. Meyer, Chief, Regulatory ACTION: Final rule. Regulatory Analysis Publications Branch, Division of

SUMMARY

The Nuclear Regulatory No regulatory impact analysis hes Freedom of Information and Commission [NRCJ is emending its been prepared for this amendment since Publications Services, Office of regulations to change the current orea it merely changes the area code of a Administration, U.S. Nuclear Regulatory code telephone number at the NRC telephone number that ls currently being Commission, Washington, DC 20555, Operations Center from (202) to (301). used by licensees undedhe existing Telephone: 301-492-1086.

This action is necessary to implement regulations. SUPPLEMENT.llRY INFORMATION: The changes initiated by the C&P Telephone Backfit Analysis commercial teleph6ne number for the Company to accommodate the NRC's Region V Office has been increasing demand for telephone The NRC has determined that the changed, effective immediately. This numbers in the metropolitan backfit rule 10 CFR 50.109 does not notice is beinR published to Inform the Washington, DC area. This amendment apply to this final rule because this rule public of the change in the commercial will provide the correct commercial will not Impose a backfit as defined in telephone number. telephone number for licensees to § 50.109[a)[1). Therefore, a backfit Because these amendments deal with contact the NRC Operations Center. analysis is not required for this rule. agency practice and procedures, the EFFECTIVE DATE: January 10, 1991. notice and comment provisions of the List of Subjects Administrative Procedure Act do not FOR FURTHER INFORMATION CONTACT: M. L. Au, P.E., Regulatory Program 10 CFR Part 20 apply under 5 U.S.C. 553(b)[A). Good Manager, Regulation Development cause exists to dispense with the usual Byproduct material, Licensed 30-duy delay in the effective date Branch, Division of Regulatory material, Nuclear material, Nuclear Applications, Office of Nuclear because the u.mendments are of a minor power plants and reactors, Occupational nnd administrative nature concerning a Re?,ulatory Research, U.S. Nuclear safety ancl health, Packaging and Regulatory Commission, Washington, -change in a telephone number. containers, Penalty, Radiation DC 20555, Telephone: (301) 492-3749. protection, Reporting and recordkeeping Environmental Impact: Categorical SUPPLEMENTARY INFORMATION: The C&P requirements, Special Nuclear material, Exclusion Telephone Company recently Institute~ Source material, Waste treatment and The NRC has determined that this rule a change to the dialing procedure for disposal. is the type of action described in exchanges within the metropolitan categorical exclusion 10 CFR 51.22(c)(2). Washington, DC, area due to the. 10 CFR Part 50

                                                                                         '.l'herefore, neither an environmental increasing demand for additional                Antitrust, Classified information,       impact statement nor an environmental telephone numbers. These changes             Criminal penalty, Fire protection,          assessment has been prepared for this resulted in the mandatory use of the          Incorporation by reference,                 final rule.

,area code (301) when dialing the NRC Intergovernment relations, Nuclear Operations Center*from locations power plants and reactors, Radiation Paperwork Reduction Act Statement

• outside the local Maryland area. The protection, Reactor siting criteria, This final rule contains no information NRC licensees will revise their Reporting and recordkeeping collection requirements and therefore is procedures end any other effected requirements not subject to the requirements of the documentation to show the proper (301) Paperwork Reduction Act of1980 (44 urea code for the NRC Operations For reasons set out in the preamble of U.S.C. 3501, et seq.).

Center. this rule and under the authority of the Since this amendment deals with Atomic Energy Act of 1954, as amended, List of Subjects agency procedures, the notice and the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 552 end 553, 10 CFR Part 20 comment provisions of the Administrative Procedures Act (APA) the NRC is adopting the following, Byproduct material, Criminal penalty, do not apply pursuant to 5 U.S.C. amendments to 10 CFR parts 20 and 50. Licensed material, Nuclear materials, 553[b)(AJ. The amendment Is effective _Nuclear power plants and reactors,

                                           . 56 FR19253                                  Occupational safety and health, upon publication in the Federal Register.

Published 4/26/91. Packaging and containers, Radiation Good cuuse exists to dispense with the Effective 4/26/91. usual 30-day delay in the effoctive date protection, Reporting and recurdkeeping a because the amendment Is of minor - 10 CFR Parts 20, 21, and 73 requirements, Special nuclear material, Source material, Waste treatment"lind and administrative nature dealing with a matter of agency conduct, I.e., a change RIN 3150-ADBS disposal. in the area code of a telephone number. 10 CFR Part 21 Change In Commercial Telephone Environmental Impact: Categorical Number for Region V Nuclear power plants end reactors, Exclusion Penahy, Radiation-protection, Reporting AGENCY: Nuclear Regulatory The NRC hes determined that-this Commission. and _recordkeeping requirements. final rule is the type of action described ACTION: Final rule. _in categorical exclusion 10 CFR 20-SC-6

PART 20

• STATEMENTS OF CONSIDERATION 10 CFR Part 73 SUPPLEMENTARY INFORMATION: B. Fundamental Radiation Protection Criminul penalty, Huzardous Principles I. Introduction ma lerials:......transportation, Incorporation The radiation protection standards in by reference, Nuclear materials, Nuclear A. Purpose of the Revision this final rule are based upon the power plant and reactors, Reporting and The purpose of this amendment to 10 assumptions that-rer.ordkeeping requirements, Security CFR part 20 is to modify the NRC's (1) Within the range of exposure measures.
• radiation protection standards to reflect conditions usually encountered in Fur the reasons set out in the developments in the principles and radiation work, there is a linear pre.amble snd under the uuthority of the scientific knowledge underlying relationship, without threshold, between Atomic Energy Act of 1954, as amended, radiation protection that have occurred dose and probability of stochastic health the Energy Reorganization Act of 1974, since part 20 was originally issued more effect!I [such as latent cancEi'r-and as amended, and 5 U.S.C. 552 and 553, than 30 years ago. These developments genetic effects) occurring; the NRC is adopting the following not only include updated scientific (2) The severity of each type of amendments to 10 CFR parts 20, 21, and information on radionuclide uptake and stochastic health effect is independent

73. metabolism, but also reflect changes in of dose; and the basic philosophy of radiation (3) Nonstochastic (nonrandom]

56FR23360 protection. Incorporation of these radiation-induced health effects can be Published 5/21/91. changes will ensure that part 20 prevented by limiting exposures so that Effective 6/20/91 continues to provide adequate doses are below the thresholds for their protection of public health and safety. induction. See 57 FR 23929 published 6/5/92. It is also the purpose of this final rule Information collection requirements The first assumption, the linear to implement the 1987 Presidential nonthreshold dose-effect relationship, effective 1/24/92. guidance on occupational radiation implies that the potential health risk is exposure (see section II.DJ. The Atomic proportional to the dose received and 10 CFR Parts 2, 1f, 20, 30, 31, 32, 34, Energy Commission [AEC) and the NRC that there is an incremental health risk 35, 39, 40, 50, 61 and 70 have followed past Federal radiation associated with even very small doses, protection guidance, and conformance even radiation doses much smaller than RIN 3150-AA38 with the guidance is viewed by the doses received from naturally occurring Commission as being necessary to radiation sources. These health risks, Standards for Protection Against ensure that NRC licensees are using such as cancer, are termed stochastic Radiation levels of protection comparable to those because they are statistical in nature; AGENCY: Nuclear Regulatory used by Federal agencies. i.e., for a given level of dose, not every Commission. The AEC and the NRC have generally person exposed would exhibit the effect. ACTION: Final rule. followed the basic radiation protection The second assumption means that recommendations of the International when a stochastic effect is induced, the

SUMMARY

The Nuclear Regulatory Commission on Radiological Protection severity of the effect is not related to the Commission (NRC) is revising its (ICRPJ and its U.S. counterpart, the radiation dose received. The third standards for protection against ionizing National Council on Radiation assumption implies that there are radiation. This action is necessary to Protection and Measurements (NCRP), effects, termed nonstochastic effects, for incorporate updated scientific in formulating basic radiation protection which there is an apparent threshold; information and to reflect changes in the standards. In 1977, ICRP issued revised i.e., a dose level below which the effect basic philosophy of radiation protection. recommendations for a system of is unlikely to occur. An example of a The revision conforms the Commission's radiation dose limitation. This system, nonstochastic effect is the formation of regulations to the Presidential Radiation which was described in ICRP radiation-induced cataracts of the eyes.

Protection Guidance to Federal Publication 26, 1 introduced a number of The above assumptions are necessary Agencies for Occupational Exposure significant modifications to existing because it is generally impossible to and to recommendations of national and concepts and recommendations of the determine whether or not there are any international radiation protection ICRP and the NCRP that are now being increases in the incidence of disease at organizations. incorporated in the NRC regulations. In very low doses and low dose rates, particular, this amendment to part 20 particularly in the range of doses to EFFECTIVE DATE: This regulation becomes puts into practice recommendations members of the general public resulting effective on June 20, 1991. However, from ICRP Publication 26 and from NRC-licensed activities. It is firmly licensees may defer implementation of subsequent ICRP publications. The established, both from animal studies this rule until January 1, 1993. The Federal radiation protection guidance and human epidemiological studies information collection requirements are signed by the President on January 20, (such as those of the radium dial not effective until NRC publishes the 1987, is also based upon the ICRP 1977 painters, radiologists, and the atomic 0MB Clearance in the Federal Register recommendations in ICRP Publication bomb survivors] that there is an (see § 20.1009). 26. increased incidence of certain cancers In adopting the basic tenets of the associated with radiation exposure at ADDRESSES: Copies of documents ICRP system of dose limitation, the high doses and high dose rates. relating to the proposed rule published Nuclear Regulatory Commission However, whether these effects occur at on January 9, 1986 [51 FR 1092), or this recognizes that, when application of the very low doses and, if they occur, document may be examined and copied dose limits is combined with the whether their occurrence is linearly for a fee in the Commission's Public principle of keeping all radiation proportional to dose are not firmly Document Room at 2120 L Street NW. exposures "as low as is reasonably established. This creates considerable (Lower-Level), Washington, DC 20555. achievable," the degree of protection uncertainty in the magnitude of the risk FOR FURTHER INFORMATION CONTACT: could be significantly greater than from at low doses and low dose rates. There Harold T. Peterson, Jr., Division of relying upon the dose limits alone. is no clear human evidence of radiation-Regulatory Applications, Office of induced genetic damage to the children Nuclear Regulatory Research, U.S. of irradiated parents. Such effects are 1 Recommends lions of the International Nuclear Regulatory Commission, inferred from studies of mice and Commission on Radiological Protection, January 13, nonmammalian species (e.g., fruit flies). Washington, DC 20555, Telephone [301) 1977, ICRP Publication No. 26 (1977), (Available for 492-3640. sale from Pergamon Press, Inc., Elmsfor.d, NY_ 105~~- 20-SC-7

PART 20

• STATEMENTS OF CONSIDERATION In the absence of convincing evidence II. Developments Since the Proposed but would lower the ALis for other that there is a dose threshold or that low Revision Was Issued compounds or mixtures by a factoi; of 10.

levels of radiation are beneficial, the A. ICRP 1985 Paris Meeting The transfer factor for the gut transfer of Commission believes that the neptunium was found to be an order of assumptions regarding a linear In March 1985, the International magnitude lower than the value used in non threshold dose-effect model for Commission on Radiological Protection ICRP-30 and, consequently, the cancers and genetic effects-and the (ICRP) held a meeting in Paris, France, ingestion AU can be increased by existence of thresholds only for certain to review the work of the various ICRP task groups and committees. One of the almost an order of magnitude. The nonstochastic effects remain transfer factors for americium, curium, appropriate for formulating radiation outcomes of this meeting was an ICRP statement 2 that the ICRP intended the and cal'ifornium were found to be a protection standards and planning factor of 2 higher than the ICRP-30 value principal dose limit for members of the radiation protection programs. general public to be 1 millisievert (100 so the ingestion ALis are reduced by a C. Background millirems) in a year, rather than 5 factor of 2. Parameters applicable to millisieverts (500 millirems). This inhalation ALis and DACs are less Standards for radiation protection clarification has been taken into account affected by the new intestinal were originally issued by the former for the limits adopted for members of absorption factor than the ingestion AEC in the late 1950s (22 FR 548, the public in the final rule and is ALis as the transfer from the January 29, 1957) and republished in discussed more fully in the discussion gastrointestinal (GI) tract to the blood 1960. These standards have been on proposed § 20.301. for 'these radionuclides is generally far modifed since that time by a series of A second recommendation of the less significant than transfer from the amendments relating to specific issues; ICRP made at that time concerned the lung to the blood. however, no complete revision of part 20 appropriate quality factor for converting has been made since the original the absorbed dose from neutrons (in C. ICRP 1987 Como Meeting standards were issued. rads or grays) to a dose equivalent (in Following its 1987 meeting in Como, The NRC issued an advance notice of rems or sieverts). The ICRP statement Italy, the ICRP issued a statement 5 that proposed rulemaking (ANPRM) in the recommended increasing the quality reviewed the existing estimates of the Federal Register of March 20, 1980 (45 factor for high-energy neutrons by a factor of 2. The quality factor for fast biological risks of ionizing radiation FR 18023). This ANPRM requested and, in particular, the preliminary data neutrons, for example, would be comments on possible topics in part 20 increased from 10 to 20. This change has from the reanalysis of the Hiroshima-that should be revised. The responses the effect of doubling the apparent Nagasaki atomic bomb followup studies. received to this announcement were biological effectiveness of high-energy Reanalysis of these data indicated that considered in the formulation of the neutrons. For reasons explained in the the risks from gamma radiation are proposed rule. discussion of quality factors (see the approximately a factor of 2 higher than During the development of this rule, discussion of proposed § 20.4), the NRC previous estimates for the general early comments from licensees, labor has not adopted this recommendation in population and are also higher, but by a unions, public interest groups, other this final rule. smaller factor, for workers. The ICRP Federal agencies, and scientific B. ICRP 1987 Washington Meeting concluded in 1987 that this information organizations were solicited, discussed, alone was "not considered sufficient at and considered in formulating the The primary focus of the statement that time to warrant a change in the proposed rule. In addition, the NRC staff issued by the ICRP following the 1987 dose limits for occupational exposure has benefited from its participation in meeting in Washington 3 was ICRP and, for the general population, the several public meetings held by the Publication No. 48. 4 That publication increase in risk indicated by the new Environmental Protection Agency (EPA) discussed higher transfer factors for data is not considered to require an transport of certain transuranic in connection with the guidance for elements across the intestinal walls. immediate change in the recommended occupational radiation exposure. These These higher fractional absorption dose limits, following the reduction by amendments to part 20 and the Federal factors have been incorporated in the ICRP (in 1985) in the principal limit guidance on occupational exposure revisions to the annual limits on intake from 5 to 1 mSv in a year (from sources were developed in parallel and are both (ALis) and derived air concentrations other than medical and natural based primarily on the ICRP (DACs) in appendix B to§§ 20.1001- background radiation)." The ICRP also recommendations. The comments made 20.2401 of this final rule. The changes noted that the potential higher risks in these EPA-sponsored meetings and resulting from the use of these revised indicated by the reanalysis of the atomic those received by EPA on the draft factors would not change either the bomb data should not be a major guidance published by EPA in the ingestion or inhalation AUs for consideration as the dose limits should January 23, 1981 Federal Register (46 FR plutonium in the oxide or nitrate forms, not be of primary importance in 7836) were reviewed by the NRC staff controlling doses if the principle of and considered in preparing the 2 International Commi~sion on Radiological keeping radiation exposures "as low as proposed part 20. Protection, "Statement from the 1985 Paris Meeting is reasonably achievable" is being of the [ICRPJ," British Journal of Radiology, Vol. 58, practiced. This position has since been The NRC published the proposed page 910: 1985: also Health Physics, 48[6): 621H!Z9 revision of the 10 CFR part 20 rule in the [June 1985). modified by the ICRP 1990 Statement Federal Register on January 9, 1986 (51 3 International Commission on Radiological (see section II.I below). FR 1092). More than 800 sets of public Protection, "ICRP Statement from 1987 Washington Meeting," Health Physics 53[3): 335-342 {1987), comments were received on the

• International Commission on Radiological proposed revision. The public comments Protection, "The Metabolism of Plutonium and on the proposed revision were Related Elements," ICRP Publication No. 48
• International Commission on Radiological

[Available for sale from Pergamon Press, Inc.. Protection, "Statement from the 1987 Como Meeting categorized, analyzed, and taken into Elmsford, NY 10523.) [1986). of the [ICRPJ," Health Physics, 54[1): 125--132 (1988). account in developing the final rule. The principal public comments and the NRG staff responses to them are discussed in section VI. 20-SC-8

PART 20 STATEMENTS OF CONSIDERATION D. Federal Radiation Protection condition that the "site operator" assess licensed activities. The fatal cancer risk Guidance on Occupational Exposure the total exposure to the most exposed value associated with the 1977 ICRP On January 20, 1987, President Reagan individual if estimated or measured recommendations, 1 is 1.25 x 10-* [the approved revised guidance to Federal exposures exceed 25 percent of this limit proposed part 20 rule, 51 FR 1102, agencies for occupational radiation (25 millirems or 0.25 mSv per year); January 9, 1986) so that the risks as protection. This guidance, which was (5) The use of "reference levels" set

• estimated by the 1988 UNSCEAR report published in the Federal Register (52 FR up by the radiation user below the for low doses are between 1.7 times 2822; January 27, 1987), generally adopts regulatory limits; lower to 2.8 times higher .than the earlier the philosophy and methodology of ICRP (6) A Negligible Individual Risk Level ICRP estimate. Implications of an Publications 26 and 30. The amendments of 1 millirem (0.01 mSv) per year. This increased risk are discussed in section to part 20 in this final rule were level is the" ... average annual excess II.I.

developed in parallel with the risk of fatal health effects attributable to irradication, below which further effort G. The 1988 Report of the National development of the guidance. Because of Academy of Sciences' Committee on the this parallel development, the proposed to reduce radiation exposure to the individual is unwarranted" [NCRP No. Biological Effects of Ionizing Radiation part 20 rule conformed with the draft (BEIR-IV) 8 Federal guidance available at the time 91, p. 43). the proposed part 20 rule was written. These NCRP recommendations were The 1988 BEIR-IV report supplements However, because of changes made to issued after publication of the proposed the 1980 BEIR-III report by providing a both the draft guidance and the draft part 20 rule and, consequently, there has more detailed analysis of the risks from part 20 revision, there were a few not been an opportunity for public internal alpha-emitting radionuclides to differences between the guidance in its comment on them. For this reason, these complement the emphasis of the BEIR-final published form and the proposed NCRP recommendations are not being III report on gamma and beta radiation. part 20 revision. As discussed in the adopted in the amendments to part 20 Revised risk estimates are given for respective sections below, changes to presented in this final rule. intakes of radon, radium, polonium, the proposed rule have been made in F. The 1988 Report of the United Nations thorium, uranium, and higher order to implement the final version of Scientific Committee on the Effects of transuranic elements [e.g., plutonium). the Federal guidance. Atomic Radiation (UNSCEAR-88) The radionuclide given the greatest emphasis in the BEIR-IV report is radon E. NCRP Report No. 91 The United Nations Scientific (radon-222), the gaseous decay product On June 1, 1987, the National Council Committee on the Effects of Atomic ofradium-226. The radon dose on Radiation Protection and Radiation has arialyzed data on the conversion factor in the BEIR-IV report Measurements [NCRP) issued a report 6 sources and effects of atomic radiation for exposure conditions representative containing updated NCRP and published a series of reports of those of the general public is recommendations for radiation containing summaries of the sources of _co_nsistent with the value used to derive protection limits. These radiation, the doses received by workers the airborne effluent concentration limit recommendations replace and members of the general public from for radon-222 in appendix B to recommendations published in 1971. The these sources, and an analysis of the § § 20.1001-20.2401, table 2 of the majority of these recommendations are potential health risks from exposure to amendments of 10 CFR part 20 in accord with the 1977 ionizing radiation. contained in this final rule. recommendations of the ICRP and, The latest report in this series is the consequently, were already reflected in 1988 report. The 1988 report 7 contains H. The 1990 Report of the National the proposed part 20 rule. There are, more recent information on the health Academy of Sciences' Committee on the however, several NCRP risks of ionizing radiation determined Biological Effects of Ionizing Radiation recommendations that were not in the from a reevaluation of the data on the (BEIR-V) 9 ICRP-26 recommendations. These NCRP survivors of the Hiroshima-Nagasaki The BEIR-V report is another recommendations are: atomic bombings. Based upon these comprehensive reevaluation of the (1) A general "guideline" that the data, the radiation risk at high doses health risks of radiation exposure based cumulative effective dose equivalent to and high dose rates is estimated to be 7.1 X 10-, fatal health effects per rad upon the revised dose estimates for the a worker should not exceed 1 times the survivors of the atomic bombings of worker's age in years; i.e., 1XN instead (0.071 effects per gray). For estimating the risk from radiation doses below 100 Hiroshima and Nagasaki. The BEIR-V of the former 5(N -18) formula; report gives risk estimates for leukemia (2) Use of committed effective dose rads, the UNSCEAR report and non-leukemia [solid cancers) that equivalent for planning purposes and recommended that a dose rate reduction are about two to five times higher than the use of annual (rather than factor be applied to account for the reduced effectiveness of lower doses the estimates in the 1980 BEIR-111 report. committed) doses for post-(intemal) The BEIR-V report gives the following exposure control; and lower dose rates. This would-lead to factors as the principal reasons for this (3) A monthly dose limit as well as a an estimated risk of fatality of between limit on total gestation dose to the (0.7 to 3.5) X 10-* health effects per rad 8 National Academy of Sciences-National embryo/ fetus; for low doses such as those encountered Research Council, Committee on the Biological (4) Adoption of a 0.1-rem (1 mSv) in routine occupational exposure and Effects of Ionizing Radiation, "Health Risks of effective doses equivalent limit for the even lower doses that might be Radon and Other Internally Deposited Alpba-exposure of the general public with the received by members of the general Emitters, [BEIR-lVJ," National Research Council, public from NRC- [or Agreement State) National Academy Press, Washington, DC 20418 (1988). .

• National Council on Radiation Protection and 8 National Academy of Sciences-National Measurements (NCRPJ, "Recommendations on 1 United Nations Scientific Committee on the Research Council, Com mi !tee on the Biological Limits for Exposure to Ionizing Radiation."' NCRP Effects of Atomic Radiation (UNSCEARJ. "'Sources, Effects of Ionizing Radiation, "'Health Effects of Report No. 91 (June 1, 1987]. (Available for sale from Effects and Risks of Ionizing Radiation, 1988 Report Exposure to Low Levels of Ionizing Radiation, the NCRP. 7910 Woodmont Avenue, suite 800. to the General Assembly, Sales Section, United (BEIR-V)."' National Research Council, National Bethesda. MD 20814-3095.) Nations, NY 10017 [1988]. Academy Press, Washington, DC 20418 (1990).

20-SC-9

PART 20 STATEMENTS OF CONSIDERATION increase: (1) Use of different dose- in survivors exposed earlier than 8 recommended by the ICRP for protection response and risk projection models, (2) weeks or later than 26 weeks after of the general public. revised estimates of the doses to the conception. Until the final ICRP recommendations individual survivors of the atomic The estimates of genetic effects to the are published, and the need for further bombings in Japan, and (3) improved offspring of irradiated individuals revisions in NRC standards established, epidemiological data from additional remained similar to those in the 1972 the Commission believes it would be years of followup studies since the BEIR-1 and 1980 BEIR-III reports. As advisable to proceed with the BEIR-III report was completed in 1980. radiation-induced inherited promulgation of the proposed dose The BEIR-V Committee uses the abnormalities have not been observed limits, rather than deferring the dose linear dose response model and the directly in humans, estimates of genetic reductions that are already associated relative risk projection model to effects have been based primarily upon with the amendments to part 20 in this extrapolate the fatal tumor risk to future experimental studies with mice. These final rule. The Commission will carefully periods. The relative risk projection studies suggest that it would take a dose review the final recommendations of the model assumes the risk to be of about 100 rads to double the natural International Commission on proportional to the natural cancer frequency of genetically transmitted Radiological Protection, the comments incidence, which generally increases diseases. of the scientific community and others with age. Because of this dependence on L ICRP 1990 Recommendations on these recommendations, and the age, the relative risk model generally ICRP response to these comments. In predicts higher future (lifetime) risks On June 22, 1990, the International addition, the Commission staff will than the absolute risk model which Commission on Radiological Protection review the recommendations of other employs a constant added risk per year issued a press release indicating that it expert bodies, such as the National with increasing age. Estimates are given would issue revised recommendations Council on Radiation Protection and of the risk as a function of the time since for radiation protection based upon the Measurements, and participate in the the exposure occurred and the age and newer studies. of radiation risks (such as deliberations of the U.S. Committee on sex of the exposed person. The BEIR-V those described in sections F, G, and H Interagency Radiation Research and report, like the UNSCEAR-88 report, above). The press release indicated that Policy Coordination and any indicates that a reduction factor should the ICRP would recommend a reduction interagency task force convened by the be applied to the risk estimates derived in the occupational dose limit from an Environmental Protection Agency to from high doses and dose rates in order equivalent of 5 rems per year to an consider revised Federal radiation to apply them to low dose and low dose- average of 2 rems per year with some guidance. Any future reductions in the rate situations. Although neither the allowance for year-to-year flexibility. dose limits by the Commission would be BEIR-V report nor the UNSCEAR-88 The ICRP dose limit for long-term the subject of a future rulemaking report recommends a specific value for exposure of members of the general proceeding. this factor, both reports indicate that public would remain equivalent to the level adopted in this amendment to part III. Issues Being Resolved Separately this factor should be greater than 2 (larger reduction factors would give a 20, 0.1 rem per year. As noted in the above discussion, lower risk per unit dose). Assuming a* The Nuclear Regulatory Commission there are several areas where the factor of 2 reduction in the risk does not believe that additional Commission believes a better scientific estimates derived from high doses and reductions in the dose limits are consensus is needed before adopting high dose rates, BEIR-V would give a urgently required by the latest radiation values different from those in the lifetime risk of a radiation-induced risk estimates. Due to the practice of present part 20. There are also several cancer fatality of about 4 X 10- 4 fatal maintaining radiation exposures areas where issues raised in the public cancers/rem (0.04 per sievert) for ALARA ("as low as is reasonably comments (see section VI) are being workers and 5 X 10- 4 per rem (0.05 per achievable"), the average radiation dose resolved in other NRC rulemaking sievert) for the general population, the to occupationally exposed individuals is proceedings because of either their higher value for the public being well below the limits in either the scope, complexity, or timing. The associated with the higher sensitivity previous or amended part 20 and also following issues are being or will be and the longer period of elevated risk below the limits recommended by the resolved in other NRC rulemaking associated with the younger ages ICRP. For example, in 1987 about 97 proceedings: present in the general population. The percent of the workers in nuclear power (1) Establishment of "Below values of 5 X 10- 4 is three times as large plants, industrial radiography, reactor Regulatory Concern (BRC)" levels as the recommended value in the 1980 fuel fabrication, and radioisotope (related to de minimis levels and a BEIR-III report and four times as large manufacturing, four of the industries negligible level of risk). On June 27, 1990, as the estimate in the 1977 ICRP-26 1 having the highest potential for the Commission announced the issuance report (see section 11.F). occupational radiation exposures, of a policy statement on Below The BEIR-V report also summarized received annual doses of less than 2 Regulatory Concern, which was the data on the frequency of severe rems, which is the occupational limit subsequently published in the Federal mental retardation found in the children proposed by the ICRP. Register on July 3, 1990 (55 FR 27522). of Hiroshima and Nagasaki atomic As a result of the application of the . This policy statement establishes the bomb survivors. These children were ALARA philosophy to effluent release framework for the Commission to exposed in utero at gestational ages of standards in appendix I to 10 CFR part formulate rules and licensing decisions 8-15 weeks and the risk of severe 50 for nuclear power reactors and EPA's to exempt certain practices involving mental retardation during this period is 40 CFR part 190 for the uranium fuel small quantities of radioactive materials about 4 X 10- 3 per rem with a possible cycle, doses from radioactive effluents from some or all regulatory controls. The threshold for the effect in the range of 20 from fuel cycle facilities are already BRC policy statement sets forth criteria to 40 rem. The risk of severe retardation much less than the 0.1 rem per year for protection of both individuals was less during other gestational ages; standard in this final rule. The 0.1 rem (individual dose criteria) and population there was no evidence of increased risk per year remains as the level groups (a collective dose criterion). 20-SC-10

PART 20 STATEMENTS OF CONSIDERATION (2) Limits for decommissioning of consensus positions are reached by the [for power and research reactors) or the nuclear facilities and for residual scientific community. Director, Office of Nuclear Material radioactive contamination. This is being Safety and Safeguards (for industrial, IV. Need for Additional Regulatory actively pursued by the NRC staff by academic, and medical licensees, fuel Guidance developing criteria for residual cycle and waste disposal facilities). contamination of soils and structures, The Commission recognizes that the The amendments to part 20 in this which are one aspect of the incorporation of many new concepts final rule have been incorporated into implementation of the Below Regulatory into part 20 will require additional the existing 10 CFR part 20 while Concern policy end ere necessary to guidance and explanation on their retaining the existing requirements. fully implement the Commission's application to practical problems in However, the new requirements have earlier rulemaking on General radiation protection. The Commission been renumbered to run from § 20:1001 Requirements for Decommissioning also notes the desirability of having to § 20.2401 in order to satisfy legal Nuclear Facilities (53 FR 24018, June 27, such additional guidance available at conditions associated with the necessity 1988). The NRC staff is also participating the same time that the final rule is of having two sets of requirements on in an EPA Interagency Task Force on issued in effective form. However, it the same subject in effect at the same Residual Radioactivity. was impractical, both for reasons of time. The existing part 20 retains its (3) Limits and celculational scheduling and availability of resources, current section numbers (§ § 20.1-procedures for dealing with the "hot for these guides to be developed 20.601). Licensees are required to particle" issue (small particles found in concurrently with part 20. Some of the comply with either § § 20.1-20.601 nuclear reactors that, because of their regulatory guides being developed or inclusive or with the requirements in high activity and small size, produce revised to assist in the implementation § 20.1001-20.2401 inclusive, but not both high localized doses to skin). The NRC of the amended part 20 ere: sets of requirements. Licensees cannot notes that the National Council on (1) Content of Radiation Protection comply with selected requirements from Radiation Protection and Measurements Programs at Nuclear Power Plants; both the new rule and the earlier (NCRP) has recently issued new (2) Interpretation of Bioassay Measurements (Draft Regulatory Guide version, but must comply with the recommendations regarding "hot complete set of requirements in either particles" in NCRP Report No. 106, 8.9, Revision 1),

                                                                                       § § 20.1-20.601 or in § § 20.1001-20.2401.
"Limit for Exposure to 'Hot Particles' On     (3) Criteria and Procedures for Summation of Internal and External             The NRC will issue a regulatory guide the Skin," December 31, 1989. A                                                        that provides the section and paragraph modified NRC enforcement policy            Occupational Doses, (4) Acceptable Criteria for Planned      identifiers in the amendments to part 20 statement with regard to the "hot                                                      (§§ 20.1001-20.2401) and the particle issue" was published in the       Special Exposures and for Satisfying Documentation Requirements;                 corresponding sections or paragraphs in Federal Register of July 31, 1990 (55 FR 31113). The NCRP report, together with a      (5) Methods and Parameters for           the earlier part 20 (§ § 20.1-20.601). This forthcoming ICRP report on the             Calculating the Dose to the Embryo/         document will be issued shortly after the biological effects of skin irradiation and Fetus;                                      publication of this rule and will enable other technical analyses, will be             (6) Instructions for Recording and       licensees to locate sections of the considered in a future rulemaking to set   Reporting Occupational Radiation            amendments to part 20 that correspond limits for skin irradiation.               Exposures (includes NRC Forms 4 and         to sections of the earlier part 20 cited in (4) Modification of NRC incident        5).                                         license conditions and technical notification requirements. A                  The Commission has instructed the        specifications.

modification of the incident notification staff to have these and other draft NRC Agreement States each have requirements was issued for public guides published for public comment regulations compatible with the existing comment on May 14, 1990 (55 FR 19890). early in 1991 and published in final form 10 CFR Part 20. Agreement States H this proposal is adopted as a final by December 31, 1991. normally amend their regulations to rule, it would modify both§§ 20.1-20.601 preserve compatibility within three V. Implementation and Existing License years after NRC issues final rules. In the and the amendments contained in Conditions

§§ 20.1001-20.2401.                                                                    Commission's view, it is desirable to (5) Publication of e separate rule for     Section 20.1008 of the amendments to     minimize the period when different large irradiators. A new part 36 has       part 20 in this final rule provides that    radiation standards and methods of been proposed for public comment           NRC licensees must implement the rule       determining doses are in effect across (Federal Register of December 4, 1990,     on or before January 1, 1993. Until         the nation. The States and the public 55 FR 50008). The detailed requirements    January 1, 1993, applicants seeking new     have had extensive advance knowledge for irradiators presently in the emended   licenses and holders of existing licenses   of the planned revision of part 20.

part 20 (§ 20.1603) will eventually be have the option of complying with the Consequently, the Commission believes deleted and replaced by the provisions new provisions of part 20 in § § 20.1001- that the Agreement States must proceed incorporated in the new part 36. 20.2401 or with the earlier provisions of as quickly as possible to conform to the

• There are also additional areas where part 20 in § § 20.1-20.601. Early amendments to part 20 presented in this the scientific basis is not yet resolved implementation may benefit applicants final rule and should require that all sufficiently to justify a change from for new licenses or license renewals as Agreement State licensees comply on or current practice. These two areas they could avoid having to adopt and before January 1, 1994, The States are require better scientific consensus on implement the earlier provisions of part encouraged to provide the flexibility for the appropriate position: (1) The need 20 for only a short period of time prior to early adoption should licensees so for end impact of a lifetime cumulative the required implementation date of the choose. As just discussed, the dose limit of 1 rem per year of age and final rule. Licensees (or applicants) that Commission has provided what it (2) quality factors, especially for wish to adopt the provisions of this final believes is adequate time (until January neutrons, low-energy beta-emitters, and rule prior to the required implementation 1, 1993) from publication of the final rule high-energy gamma photons. These date should notify* either the Director, before all NRC licensees must comply.

issues will be reconsidered as Office of Nuclear Reactor Regulation Agreement States may also wish to 20-SC-11

PART 20 STATEMENTS OF CONSIDERATION provide additional time for their adequate margin of safety. In evaluating 1. New Terms. The following licensees to comply to facilitate any ensuing violations and their definitions have been added to the final transition and the Commission would severity, the Commission will consider rule. These definitions have been added have no objection so long as compliance on a case-by-case basis any extenuating to clarify the meaning of the terms: is required by January 1, 1994. circumstances. a. "Activity" VI. Summary of Public Comments and Proposed Section 20.2 Scope [Section b. "Background radiation" Changes from Proposed Rule 20.1002 in This Final Rule] c. "Derived air concentration-hours" ("DAC-hours") The purpose of this section is to , Final rule: The statement of scope d. "Dosimetry processor" respond to comments raised on the remains essentially the same as in the e. "Entrance or access point" proposed rule and to explain and proposed rule except that "background f. "Generally applicable environmental highlight the changes made to the radiation" has replaced "natural standard" proposed rule. This section presents, for background." This change was made to g. "Individual monitoring device" each paragraph or section of the rule, include residual global fallout and h. "Quality factor" the principal public comments on the ambient radon levels within the proposed rule, an NRC staff response to i. "Sanitary sewerage" definition of "background." j. "Total effective dose equivalent the comments (where appropriate), and a summary of the principal changes that Proposed Section 20.3 Definitions (TEDE)." were made to the proposed rule. This [Section 20.1003 in This Final Rule] 2. Revised Definitions. The following section has been arranged so that it General: Because of the large number definitions have been revised or corresponds to the structure of the of comments that dealt primarily with modified from the definition used in the proposed rule. However, the following wording changes or that questioned the proposed rule: text is not intended to create any need for or the use of particular a. "Absorbed dose" additional requitement not already in definition, the individual comments will b. "Annual limit on intake" the regulatory text. not be discussed separately. However, c. "Class" Subpart A-General Provisions these comments did result in substantial d. "Committed dose equivalent" revisions to many of the definitions that e. "Committed effective dose Proposed Section 20.1 Purpose [Section appeared in the proposed rule. Those equivalent" 20.1001 in This Final Rule] definitions that were added, modified, or f. "Derived air concentration" Final rule: A new sentence was added deleted as a result of the public g. "Dose equivalenf' to convey the intent of the former § 20.9 comments are listed below. h. "Effective dose equivalent" in the proposed rule (which has been Comment: Differentiation among i. "Embryo/fetus" removed) that the regulations in Part 20 different kinds of dose equivalents. The j. "Eye dose equivalent" should not hinder a licensee's actions to potential for confusion among different k. "Member of the public" protect health and safety in the event of dose equivalents was noted. I. "Nonstochastic" an emergency. It is the Commission's Commenters noted that effective dose m. "Person" intent that the regulations be observed equivalents, committed effective dose n. "Planned special exposure" to the extent practicable during equivalents, and doses to the lens of o. "Quarter" emergencies, but that conformance with eye, skin, or extremities were all p."Survey" the regulations should not hinder any expressed in units of rems or sieverts q. "Weighting factor" actions that are necessary to protect and may be difficult to distinguish from r. "Working level" public health and safety such as one another. s. "Year" lifesaving or maintaining confinement of Response: In the final rule the NRC 3. Definitions and terms deleted. Two radioactive materials. staff has applied unique names for these definitions were deleted because the In this regard, the Commission notes previously undesignated quantities terms no longer appear in the rule: that the Federal guidance on including: eye dose equivalent, shallow- "Collective effective dose equivalent" occupational radiation protection states dose equivalent (skin), shallow-dose* and "Roentgen." "Natural background" that those dose standards only apply to equivalent (extremities), and total has been replaced by "Background normal operating conditions. The effective dose equivalent. The ICRP did radiation." Commission believes that the dose not give these quantities specific names. limits for normal operation should The use of characteristic names is Proposed Section 20.4 Units of remain the primary guidelines in intended to reduce confusion in using Radiation Dose [Section 20.1004 in This emergencies. However, the Commission these units. In this regard, it should be Final Rule] also recognizes that, in an emergency, noted that the licensee is required to Comment: Choice of the system of operations that do not conform to the designate, in a clear and unambiguous units. Several commenters expressed a regulations may have to be carried out manner, the quantities that are being preference for retaining the older to achieve the high-priority tasks of recorded (see§ 20.2101(b)). "special" units (the curie, rad, and rem) worker, public, and facility protection. Final rule: All the important rather than allowing the use of the The purpose of the addition to this definitions have been collected into one newer SI units. Reasons cited for section is to assure licensees that their section, § 20.1003 Definitions. Unlike the retaining the older system included:

• first priority should be to carry out those proposed rule, which employed groups present widespread use and licensee actions that are necessary to protect of related terms ("Area Terms," "Dose familiarity, potential for workers and the public from radiation Terms," "Monitoring Terms," etc.), all of misunderstandings with the newer units, exposure, to perform lifesaving the definitions in the amended rule are the need for worker retraining activities, to prevent or limit the spread listed in strict alphabetical order. This (particularly while lQaming the new of radioactive contamination or the organization also avoids the presence of ICRP system of dose limitation), and the release of radioactive materials to the "local definitions" that appear only in a costs associated with changing environment, and to preserve an specific section of the regulation. recordkeeping systems. A smaller 20-SC-12

PART 20 STATEMENTS OF CONSIDERATION number of cornmenters favored changing apparent increase in the neutron RBE is Subpart B-Radiation Protection over to the SI units: becquerels, grays, due to the increased effectiveness of Programs and sieverts. neutrons or whether it actually results Proposed Section 20.102 "As Low As ls Response: Although both the "special from the decreased effectiveness of the Reasonably Achievable" (ALARA) units" and the SI units appear in the text reference gamma radiation at low doses. [Section 20.1101 Radiation Protection of part 20 (to increase the familiarity of Final rule: The NRC has decided not

• Programs in This Final Rule]

licensees with the SI units), the to revise the neutron quality factor at Commission has decided that adoption this time but to defer any change until Comment: The concept of ALARA is a of the SI units at this time is not there is greater scientific consensus on philosophical principle of radiation necessary. The Commission recognizes protection and, as such, it should not be the most appropriate value. A major that the new terms and methodological made into a regulatory requirement. A consideration underlying this decision is primary objection to changing the status approaches in the amendments to part 20 are complex and that imposition of that neutron exposures at most NRC- of ALARA from the hortatory suggestion the SI system of units on top of this licensed facilities are currently small in§ 20.l(c) of§§ 20.1-20.601 ("licensees complexity would further increase the and the potential increase of a factor of should") to a mandatory requirement potential for confusion. Consequently, at 2 would not have a major health or ("licensees shall") in proposed § 20.102 the pr}}