ML20205L147
| ML20205L147 | |
| Person / Time | |
|---|---|
| Issue date: | 10/13/1988 |
| From: | Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| References | |
| FRN-53FR42939, RULE-PR-50 NUDOCS 8811010489 | |
| Download: ML20205L147 (13) | |
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9 q{ 60 m ;;,.u udLL 2..===3 51 FR 4df 3 9) NUCLEAR REGULATORY COMMISSION
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10 CFR Part 50 Licensee Announcements of Inspectors
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"Cl AGENCY:
fluclear Regulatory Comission.
ACTION:
Final rule.
SUMMARY
- The Nuclear Regulatory Comission is amending its regulations to ensure that the presence of NRC inspectors on nuclear power reactor sites is not widely comunicated or broadcast to licensee and contractor personnel without the expressed request to do so by the inspector. This change will allow the NRC inspectors, badged at the facility, to observe ongoing activities as they are being performed w 4hout advanced notification of the inspectinn to licensee and contractor per',onnel.
There is a need for this change because of the possible altering of attention and performance leveh of a licensee and/
or its contractors when the licensee is aware of NRC surveillance.
Past occur-rences where site and/or '.ontractor personnel have been notified of NRC's presence on site, iiave heightened concern in this area.
EFFECTIVE DATE:
FOR FURTHER INFORMATION CONTACT:
George Barber, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Comission, Washington, DC 20555 Telephone (301) 492-1234.
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l lY D.J.
SUPPLEMENTARY INFORMATION:
1.
BACXGROUND By clarifying the meaning and intent of 10 CFR 50.70(b)(3), this final rule should ensure that NRC inspectors will be granted innediate and unannounced access to licensee facilities so as to provide the inspector with unfettered access equivalent to that provided a regular plant employee following proper identification and compliance with applicable access control procedures. This rule provides that no access control measures or other means may be employed by the licensee or its contractors to intentionally give notice to other persons of the arrival and presence of a NRC inspector at a facility, unless the licensee is specifically requested to do so by the NRC int.pector. There have been instances in the past at several facilities that compromised the ability of properly badged NRC inspectors to inspect and access, on an unannounced basis, activities related to the license or construction permit when licensee employees or contractor employees informed others at the facility of the presence of the NRC inspectors. This change to 10 CFR 50.70 is to clarify that NRC inspectors, badged at the facility, have immediate, unescorted access to ongoing activities as these activities are being perforced without advanced notification of the inspection. This is especially important during non normal business hours when operating personnel might assume NRC inspectors would not be on site.
SUMMARY
OF COMMENTS On March 18, 1988, the Connission published in the Federal Register (53 FR 8924) a notice of proposed rulemaking on "Licensee Announcement of Inspectors." The Cornission invited the public to comment on the proposed
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rule and received six letters of coment by April 18, 1988 (the specified closing date for public coments). After April 18, 1988, 26 additional letters of comments were received. All 32 letters of coments were considered in I
NRC's review of this final rule.
The comments are discussed below.
Coment:
A majority of the comenters believed the rule was unnecessary and characterized it as being too broad and vague. They asserted that it: was redundant with current regulations; would lead to unfair and impractical enforcement; be impossible to implement; inhibit inspector assistence by plant t
personnel; 1 Nit the ability of facility management to perform their safety functions; promote lying among the facility staff; require formal training and recordkeeping; and, indicates a distrust of licensees.
NRC Response:
NRC does not agree with the coments, but to ensure that the intent of the rule j
is clear and focused, adds the following clarification of the rule. The intent of this rule is to prevent site and contractor personnel from wide-spread dissemination or broadcasting the presence of an NRC inspector.
Broadcasting, j
i as used here, is defined as unsolicited one-way comunications.
Implementing j
or enforcing this rule should be no more difficult than implementing or
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enforcing any rule that involves personnel performance, t
i Adopting this rule does not indicate a predisposition on the part of the NRC f
t that licensees are not acting properly, it is human nature for an individual
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to be more conscious of his or her performance w Mn the individual realizes he or she is being observed. The NRC inspection program evaluates licensee performance on the basis of a sampling of its activities.
It is criticel that I
the sampling portion of the licensee's activities that are relied upon for this evaluation be representative of its overall activities.
Therefore, the rule is more prophylactic than proscriptive, although it Wes carry enforcement sanctions should it be violated.
Recognizing the possibility of inadvertent connunication of an inspector's presence, the NRC expects to reserve enforce.
nent action for significant intentional violations of the rule. An honest response by an employee to an innocent inquiry that he/she just saw an NRC inspector is not within the proscriptive perimeter of the rule. Therefore, an employee would not be required to lie, in response to a question, about the presence of an NRC inspector. Based on this discussion, formalized training will not be necessary, and NRC Form 3 need not be modified to reflect this requirement.
The NRC does not agree that this rule will prevent management from performing its safety functions, it should be noted, the rule does not affect software security systems which monitor the presence of persons 5 certain areas.
Such systems should provide the licensee with needed information on space occupancy in the case of an emergency or evacuation.
For those Itcensees who have these systems in place, or will put thea in place, the rule does not affect such systems.
If a licensee were, however, to design or modify these systems (or use them) for the purpose of monitoring the NRC inspector's savements in order to alert other plant personnel of the inspector's whereabouts, those actions would violate the rule.
5-In sum, the licensee is prohibited from taking affirmative action which would compromise the NRC inspector's mission of gaining unfettered access to the plant and its various areas of interest to the inspector.
Comment:
Some commenters expressed a concern that the rule could raise Constitutional questions under the First and Fourth Amendments.
NRC Response:
As discussed above, the purpose of the rule is to enhance the credibility of the inspection process.
Inspections are specifically authorized under section 161o of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2201(o).
The regulation is narrowly drawn to achieve a legitimate governmental interest (effective NRC inspections) without infringing on an individual's right to express ideas and opinions on any subject. Thus, the regulation does not impennissively intrude upon freedom of speech protected by the First Amendment to the Constitution.
The regulation does not raise any significant fourth Amendment consider-ations. The Atomic Energy Act creates a pervasive regulatory scheme that puts Itcensees on clear notice that they will be subject to inspection, and the granting of a license is conditioned on consent to reasonable inspections.
Thus, MRC inspections of licensees' premises, activities and records do not require a warrant under the Fourth Amendment.
United $tstes Nuclear F.egulatory Commission vs Radiation Technology, Inc., 519 F. Supp. 1266, 1288-91 (D.N.J.
. 1981): Union Electric Co. (Callaway Plant, Units.1 & 2), ALAB-527, 9 NRC 126, 139-41(1979).
The new regulation is a reasonable exercise of the Connission's inspection authority.
Inspectors will continue to identify themselves and comply with other reasonable access control measures and, as always, inspec-tions will be conducted for purposes authorized under the Atomic Energy Act and the Energy Reorganization Act.
The regulation does not run afoul of the fourth Amendment to the Constitution.
COMMENT:
A number of commenters suggested that the rule be implemented only by written request of the NRC inspe'; tor.
NRC RESPONSE:
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NRC rejects the suggestion.
With this suggested modification, the rule would only apply to those individuals who had been given notice of the NRC inspector's presence on site.
If implemented, this suggestion would defeat the intent of the rule.
Environmental Impact:
Categorical Exclusion the NRC has determined that this change is the type of action described in categerital exclusion 10 CFR 51.22(c)(2).
Therefore neither an environmental
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7 impact statement nor an environmental assessment has been prepared for this j
final rule.
Paperwerk Reduction Act Statement 2
The final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
Existing requirements were approved by the Office of Management and Budget approval number 3150-0011.
j bguiatory Analysis i
This final rule will have no significant impact on state and local governments and geographical regions.
It may have a significant impact on j
health, safety, and the environnent, but only in the sense of preventing l
adverse impacts on health, safety, and the environment through more effective j
inspections. The rule will make it clu r that NRC inspectors are to 6 /e a realistic picture of 1he actual conditions at a site during the in'
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pror.ess and, therefora, be better able to identify pehntially dangerous conditions and/or practices for corrective action and to ensure that licensees comply with laws, regulations, and orders administered by the NRC.
This constitutes the regulatory analysis for this final rule.
4 Regulatory Flexibility Certification l
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j in accordance with the Regulatory flexibility Act, 5 U.S.C. 605(b), the
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Cosmiission certif tes that this final rule does not have a significant economic i
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i 8-impact on a substantial number of small entities. The fir.a1 rule applies only to licensees authorized to construct or operate nuclear power reactors, who are not small business entities within the meaning of the act or implementing regulations.
Therefore, a regulatory flexibility analysis has not been prepered.
Cackfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does apply to this final rule.
The backfit analysis for announcement of inspectors rule in accordance with each of the factors specified in 10 CFR 50.109(a)(4)(ii)
(c)isasfollows:
(1) This rule provides that no means may be employed by the licensee or its contractors to intentionally give notice to other persons of the arrival and presence of a NRC inspector at a facility, unless the licensee is specifically requested to do so by the NRC inspector.
(2) N licensee will nave to communicate the requirements of this rule to its personnel and to contractor personnel working at its site.
(3) The purpose of this rule is to enhance the credibility of the inspection process. By requiring that the presence of NRC inspectors (either resident or off site) is not announced, the NRC, public and licensees will have more confidence that the activities inspectors are w'tnessing are representative of licensee performance.
Ensuring that NRC inspectors are witnessing representa-tive licensee performance could substantielly increase the likelihood that NRC
- inspectors will discover unsafe or potentially unsafe practices, bring about corrective ations and thereby lower the risk of accidents occurring which could lead to the accidental off-site release of radioactive material.
It is not possibb, without before and after data, to quantitatively evaluate the benefits of implementing this rule.
Still, a recent significant enforce-ment action concerning licensee employee's inattention to duty demonstrates the premise advanced in the above paragraph.
In this enforcement action, aver 30 licensee personnel, both management and staff were cited for inattention to duty. The primary concern was sleeping on watch.
It is not difficult to envision accidents that c.ould occur because of this type of licensee perfonnance.
Coupling inattention to duty with equipment failure adds a new dimension to the risk of accidents occurring which could lead to the off-site release of radio-active material.
In the enforcement action mentioned above, had the licensee announced the presences of the NRC inspector, the inattention to auty would have gone unnoticed.
It should be noted that the licensee facility where this incident occurred did, on one past occasion, announce the presence of NRC inspectors.
(4) Not appropriate.
There is no radiological exposure of facility employees resulting from the rule's implementation.
(5) Very minor costs are associated with the rule's implementation. There are no training requirements or record keeping requirements associated with this rule.
The onif cost to the licensee would be comunicating this rule to its employees and contractors.
- (6) Not appropriate.
There is no potential safety impact of changes in plant or operational complexity associated with this rule.
'7) Not appropriate. There is no resource burden on the NRC from the imple-mentation of this rule.
(0) Not appropriate.
There is no potential impact of differences in facility type, design or age on the relevancy and practicality of the proposed backfit.
(9) The proposed backfit is final.
Conclusion Based on the above analysis, the Commission concludes thi.t there is a substan-tial increase in the overall protection of the public health and safety or the common defense and security to be derived from this backfit and that the direct and indirect costs of implementation for facilities are justified in view of this increased protection.
List Of Subjects In 10 CFR Part 50 Antitrust, Classified information, Fire protection, Incorporation by ref e, Intergovernmental relations, Nuclear power plants and reactors, Pens'
tion protection, Reactor siting criteria, Reporting and reccrdkeep?ng requirements.
r
. 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 to adopt the following amendment to 10 CFR Part 50.
PART 50 - DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION FACIll7IES 1.
The authority citation for Part 50 continues to read as follows:
AUTHORITY: Secs.102,103, M4,105,161,182,183,186,189, 68 Stat.
936, 937, 933, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 1244 as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42U.S.C.5841,5842,8546).
Section 50.7 also issued under Pub. L.95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5851). Section 50.10 also issued under secs. 101, 185, 68 Stat. 936, 955, as amended (42 U.S.C. 2131, 2235); sec. 102, Pub. L.91-190, 83 Stat.
853 (42 U.S.C. 4332). Sections 50.23, 50.35, 50.55, and 50.56 also issued under sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a, 50.55a, and Appendix Q also issued under sec. 102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C.
4332). Sections 50.34 and 50.54 also issued under sec. 204, 88 Stat.1245 (42 U.S.C.5844). Sections 50.58, 50.91, and 50.92 also issued under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C. 2239).
Section 50.78 also issued under sec.
I 127, 68 Stat. 939 (42 U.S.C. 2152).
Sections 50.80-59.81 also issued under sec.184,68 Stat.954,6samended(42U.S.C2234). Section 50.103 also l
issued under sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138). Appendix F i
also issued under sec.187, 68 Stat. 955 (42 U.S.C. 2237).
For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273);
il50.10(a),(b),and(c), 50.44,50.46,50.48,50.54,and50.80(a)areissued under sec.161(b), 68 Stat. 948, as amended (42 U.3.C. 2201(b)); il50.10(b) and (c), and 50.54 are issued under sec. 161(1),68 Stat.949,asamended(42 U.S.C. 2201(i)); and 1950.9, 50.55(e), 50.5c(b), 50.70, 50.71, 50.72, 50.73, and 50.78 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C.
2201(o)).
2.
In 150.70, paragraph (b)(4) is added to read as follows:
550.70 Inspections.
(b)*
(4) The licensee or construction permit holder (nuclear power reactor only) shall ensure that the arrival and presence of an NRC inspector, who has been properly authorized facility access as described in paragraph (b)(3) of
.e,
this section, is not announced or otherwise comunicated by its employees or contractors te other persons at the facility unless specifically requested by the NRC inspector.
Dated at Rockville, MD, this [h day of i.
For the Nuclear Regulatory Comission.
S/h AA UfM.
ctorbtella Executive Director for Operations l
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