ML20204B477
| ML20204B477 | |
| Person / Time | |
|---|---|
| Issue date: | 03/17/1987 |
| From: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-48FR31050, RULE-PR-50 PR-870317, NUDOCS 8703250070 | |
| Download: ML20204B477 (4) | |
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'87 MAR 18 P4 :06 NUCLEAR REGULATORY COMMISSION OFFhE 5 10 CFR PART 50 DNg g ml Protection of Employees Who Provide Information AGENCY:
Nuclear Regulatory Commission.
g ACTION:
Proposed rule: Withdrawal
SUMMARY
- The Nuclear Regulatory Commission is withdrawing a proposed rule,-
which would have required Part 50 licensees and applicants to include in procurement contracts a clause requiring contractors and subco'ntractors to post Form NRC-3 dealing with employee protection. The Commission is pursuing the matter by seekino voluntary cooperation from licensees in urging that Form NRC-3 be oosted by contractors and by continuing cooperative efforts with the Department of Labor.
FOR FURTHER INFORMATION CONTACT: Anthony J. DiPalo, Office'of Nuclear Regulatory Research, U.S. Nuclear Reoulatory Commission, Washington, DC 20555, (301) 44?-7605.
SUPPLEMENTARY INFORMATION: On July 6, 1983, the Commission p,ublished in the FEDERAL REGISTER a proposed rule which would have required Part 50 licensee.s and applicants to insert in procurement contracts a clause reouiring contractors (and in turn. subcontractors) to post on their oremises, Form NRC-3 regarding employee protection (48 FR 31050). The proposed rule was cart of a continuing Commission effort to implement Section 210 of the Energy Reorganization Act, which protects employees of Commission licensees and applicants or their contractors and subcontractors from discrimination based upon employee participation in Commission proceedings.
Further general background is provided in the notice of proposed rulemaking and in a prior Commission notice on employee protection (a7 FR 30453, July 14,198M.
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'f7590-011 The Connission received 15 public comments on the pro
.ed rule, mostly from industry or industry representatives. While a few cr s.1 enters requested oniv clarifying changes *, most others strongly opposed the proposed rule approach of
. procurement, contract modification. Amodg the arguments offered against the proposed rule were the followina:
1.
The rule is an additional administrative burden on contractors.
2.
Monitoring and enforcement would be difficult and costly.
3.
Licens'ees would be unable to purchase from contractors not agreeing to the contract term.
4.
Licensees have no direct control over contractor / subcontractor relations.
5.
The reouirement is unnecessary because nuclear contracts already contain a provision requiring the parties to observe all applicable laws and-regulations including those on employee protection.
6.
The posting requirement should be imposed directiv en contractors and subcrontractors, rather than by interference with contractual matters.
' The strenath of the requirement is reduced significantiv by imoosina it via third parties (i.e., licenseesi.
7.
The contractor would receive nothina in return for observing the postina-reauirement.
Hence the licensee has no Jargaining position in this
- regard, 8.
T'he rule is unnecessary because most discrimination claims (90%) are l
filed by 10 CFR Part 50 licensee employees and employees of tPeir 1
contractors and subcontractors. These employees are therefnre already j
l aware of their rights.
9.
Given the complexities of contracting in the nuclear industry, it would be difficult for licensee,s to determine which contracts are covered by y
the requirement (e.o., unwritten " modifications" to procurement agreements, purchases from existina stock of distributors, etc.).
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f7590-01
9 s.
s The Commission does not necessarily agree with all of the above arauments.
However, taken'as a whole the comments #iled by industry. representatives do indicate that the proposed rule may not be the preferred alternative. While the straight forward approach 1.e., 16 position of the posting requirement directly on contractors and subcontractors by rule, has the appeal that it does not depend upon third parties (licensees) for enforcement, the Commission's_ authority under Section 210 of the Energy Reorganization Act is not sufficient to support such a rule.
In this area the Commission's direct enforcement powers clearly end with the licensee or applicant.
The Commission could enforce the " posting clause requirement on its licensees by a program of reviewing procurement contracts *.
Ensuring that the clause was inserted in subcontracts would be more difficult because the licensee would not,beapartytot$econtract. The fundamental problem, however, is that neither the lic'ensee nor the NRC are in a position to confirm that the clauses are beina carried out, and if not, to require conformance.
As stated, NRC does not have jurisdiction over nonlicensees. The licensee's ability to correct noncompliances, however discovered, rests on contract rights. The ability to aain " specific performance" of a contract term as a.4udicial remedy is limited by contract law doctrines which generally favor the aranting of moneta'ry damages for breaches of contract.
If the "postina clause" contained a built-in penalty clause, e.g., forfeiture of a significant portion of the contract price, the remedy issue might be solved but contractor resistance might be, encountered in the barcaining process. Such penalty clauses would have to be tailored to individual contracts, and would also have to be inserted in subcontracts. The Commissi,on is reluctant to delve this deeply into contractual relations, and in any event would have to do so by' proposed rulemaking after careful study of the leaal and financial consecuences of requiring penalty clauses for failure to observe the postino reouirement.
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o f7590-011 4
The procurement contract method suggested in the proposed rule places the licensee in the position of having to police its contractors, and their contractors, with regard to matters not directly related to contract performance. Moreover, enforcement of the ultimate purpose of the rule, which is not the posting clausJ itself but the actual posting of the form, rests upon contract remedies which can only be exercised by the licensee.
(In the case of subcontractors, even the licensee would be without a rioht of action.) The Comission believes that its resources, and those of the licensee, would be better directed toward confirmino that the products and services received
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from contractors and subcontractors meet applicable reouirements rather than'
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dissipated in an effort to ensure that a form is posted on contractor premises.
The Commission continues.to believe that all possible measures should.be taken to ensure that employees of licensees, applicants, contractors, and subcontractors are adequatelv informed of their-richts so that the Commission's access to safety information is unrestricted by threats of employment discrimination. On balance, however, the Commission has concluded that the nethod of the proposed rule would not best serve this objective. The Comission is therefore withdrawing the proposed rule.
Dated at Washington, DC, this /2 dayof/bt4d;1987 FortheNuclearReoulatoryC,opmilsion i
e s
Hoyle' Joh C.
Ac ing Secretary of the Commission 9
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