ML20207T940
| ML20207T940 | |
| Person / Time | |
|---|---|
| Issue date: | 03/06/1987 |
| From: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-52FR7432, RULE-PR-110, RULE-PR-150, RULE-PR-30, RULE-PR-40, RULE-PR-50, RULE-PR-55, RULE-PR-60, RULE-PR-61, RULE-PR-70, RULE-PR-71, RULE-PR-72 AC45-1-61, PR-870306, NUDOCS 8703240435 | |
| Download: ML20207T940 (46) | |
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RCLEAR REGUIAmY (DMISSim 00ChE":-
t c c; MANC-10 CER PARIS 30, 40, 50, 55, 60, 61, 70, 71, 72,110 and 150 Ccrnpleteness and Accuracy of Informaticn AGENCY.
Iluclear Regulatory Cmmission.
I ACIlW:
Proposed rule.
SOFARY: The hTC is amending its regulations to codify the obligations of li-censees and applicants for licenses to provide the Ccmnission with complete and accurate infonnation, to maintain accurate records and to provide for disclo-sure of infonnation identified by licensees as significant for licensed activities.
ImTES: Ccmnent period expires April 10, 1987.
Cmments received af ter this date will be considered if it is practical to do so, but assurance of consideration is given only for ccm-ments received on or before this date.
ADDRESSES:
Interested persons are invited to send written ecmnents or sugges-tions to the Secretary of the Cmmission, U.S. Nuclear Regulatory Conmission, Washington, D.C. 20555, Attention: Docketing and Service Branch. Cm ments may 3Si b
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B703240435 870306 PDR PR 30 52FR7432 PDR
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- also be delivered-to Room 1121, 1717 H Street, N.W., Washington, D.C. between 8:15 a.m. and 5:00 p.m.
Copies of any cements received may be examined at the NBC Public Doctrnent Roan,1717 H Street, N.W., Washington, D.C. 20555.
ECR FIRI1ER INF0HMKfim CENTACT-. fames LiebetTnan, Assistant General Counsel for Enforcenent, Of fice of the General Counsel, U.S. Nuclear Regulatory Cannission, Washington, D.C. 20555. Telephone:
(301) 492-7496.
6UPPIDENTARY INEGWATIW: Accuracy and forthrightness in ccmaunications to the NRC by licensees and applicants for licenses are essential if the NRC is to fulfill its responsibilities to ensure that utilization of radioactive material is consistent with the health and safety of the public, the ccnmon defense and security and the protection of the envirotinent. Several provisions of the Atanic Energy Act highlight the importance of accurate infortnation.
Section 186 provides that "Any license may be revoked for any material false stater.ent in the application or any statenent of fact required under section 152...."
l' Section 182 provides that:
The Comnission may at any time af ter the filing of the original applica-tion, and before the expiration of the license, require further written statenents in order to enable the Cmmission to detetTnine whether the ap-plication should be granted or denied or whether a license should be modi-fled or revoked. All applications and statsnents shall be signed by the applicant or 1icensee. Appiications for and statsnents made in connection with, licenses under sections 103 and 104 shall be made under oath or
' affi mation. De Ccmnission may require any other applications or state-ments to be made under oath or affimation.
His need for accuracy in ecmaunications has been emphasized through the adop-tion in licensing provisions, although not on a unifom basis, of requirenents regarding the sutnission of applications. See, e.g., 10 C.F.R. SS 50.30(b),
55.10(d), 61.20(a), 70.22(e) and 72.11(b).
De Cannission's expectation of accuracy in ecnmunications has not been limitec to written information sutmitted in applications. D e Ccmnission's decision in an enforcement action taken against Virginia Electric and Power Co.
established a certprehensive requirenent for applicants and Iicensees to provide emplete and accurate infomation to the Conmission.
In the VEPCD case, false statenents were alleged to have been made in VEPCD's sutmissions to the Conmis-sion on the geology of the North Anna site.
Onissions of infonnation by VEPCD were also evaluated: two were failures to present evidence at the Licensing Board construction pennit hearings about suspected faulting and the third anis-sion was VEPCD's failure to provide the Board or staff with reports prepared by its geology consultant.
In its decision, the Ccnmission concluded "that the riaterial false statenent phrase in the Atcmic Energy Act may appropriately be read to require full disclosure of material data". Virginia Electric & Pcwer Capany (North Anna Power Station, Units 1 and 2), CLI-76-22, 4 HEC 480 (1976),
af f'd, 571 F.2d 1289 (4th Cir.1978). De tcmnission decided materiality is to be judged by v.hether infonnation has a natural tendency or capability to influ -
ence an agency decisiomaker; that knowledge of the falsity of a material statement is not necessary for a material false statenent under 5186 and that material missions are actionable to the same extent as affinnative material f alse statanents.
' Under this standard, both the written statenents and anissions made by VEPCD were subject to civil penalties.
In subsequent years, the Cmmission-took a ntmber of enforcanent actions for material false statements. 'Ihese en-forcenent actions included the following t' actual situations: anission of in-fonnation about receipt of draf t reports during oral statenents made in an infonnal meeting between the staff and a licensee; statenents in a telephone call, letter and oral briefing that mobile sirens forming part of a licensee's prompt public notification system were installed and operational, when in fact they were not; oral statenents to an hTC inspector that licensed material had not been out of storage, when in fact it had been used; and erroneous state-ments in response to an IE Bulletin concerning the use of certain lubricants and fasteners.
'Ihe Cannission's General Policy and Procedure for NRC Enforement Actions, 10 CFR Part 2, App. C, originally published on March 9, 1982, (47 Fed.
Reg. 9987) specifically dealt with enforcenent for material false statenents.
In March 1984, af ter several years of handling enforcenent cases under the VEPCD holding and this enforcenent policy, the Conmission specifically solicit-l ed caninents on the issue of material false statenents. Responses to the fol-lowing questions were requested: (1) Has the Cmmission's snphasis on material i
f alse statenents had a positive effect on the quality of eminunications with the NRC or has it had a chilling ef fect on such connunications? (2) Should the j
definition of material false statenent be changed to apply only to written statenents, subnitted under oath? (3) Should materiality be contingent upon j
the safety significance of the underlying infonnation? (4) Should materiality be dependent upon actually influencing an agency reviewer as opposed to having
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' ' 4 the capability of influencing a reasonable agency reviewer? (5) What would the expected effect of such changes be? (49 FR 8584, March 8, 1984).
The Cm mission received cm ments fra twenty-nine organizations and indi-viduals, including utilities, law fi ms, utility associations, an architect engineer, an intervenor, an anployee at a nuclear facility, and members of the public. The eminents are stamarized below categorized into five principal concerns.
Threshold for Material False Statments - Most of the cmmenters suggested that the definition of material false statenent which the Cmmission had been using since the VEP00 decision in 1976 is too broad. The VEPG) case does not contain an actual definition of the tenn " material false statement" but it does describe the clanents of the phrase. Under that decision, a material false statement may be an af fimative statement or an mission. By implication, therefore, a material false statenent need not be in writing or under oath.
It need not be made with knowledge of its falsity; it can be unintentionally made, i
Some cementers sought to limit the definition by changing the rmteriality i
standard. See suggested thht it should take into greater account the safety significance of the information. Others suggested that instead of merely hav-ing the capability of influencing a reasonable agency reviewer, the statenent l
should be required to actually influence a reasonable agency reviewer.
i Onissions - Cmments criticized the application cf material false state-ment to an mission, arguing that if the tac wanted to require full disclosure of material informution it should clarify its reporting requirments to ir.di-l cute just what infomation is required to be disclosed.
Legal Issues - A nteber of conmenters e:gressed the view that, as a matter of law, a material false staterent must be sulmitted in writing and under oath
.. for a power reactor. This conclusion was based on their reading of sections 186 and 182 of the Atcroic Energy Act that a material false statement can exist only when the stat ment in question is contained in an application or sought by the NRC under section 182 of the Act. Section 182 provides that " applications for, and statenents made in connection with, licenses u'ider sections 103 and 104 [of the Act } sha11 be made under oath or af firmation." Not alI comnenters favored restricting application of the term to only those statenents under oath. Sane argued that such a limitation will only create a greater adminis-trative burden on the licensee, because the Cannission will demand that all correspondence be notarized.
Negat tve Connotations - Many of the ecmnenters focused on the adverse im-pact on the integrity of individuals and licensees which they believe results frau a citation for a material false statenent.
In their view, a material false statenent is understood by the public as a lie with all of the connota-tions of dishonesty wtitch that entails. Largely because of these connotations, many cccmenters urged that the definition of material false statenent be nar-rowed and its use limited to those situations where integrity or benesty is actually at issue. Accordingly, sane suggested that it be reserved for inten-tional false statsuents.
Oral Statenents - Many conmenters also focused their criticism on the ap-plication of sanctions for material false statenents involving oral ecmnunica-tions since many of the day-to-day contacts with the NRC are by telephone or through oral conversations with inspectors on site. The ecmnenters indicated that the inclusion of these statements in the cefinition of material false j
statsuents had a chilling ef fect on day-to-day ccmnunications to the detriment of the regulatory process.
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7 At the time the Camission solicited these emments, it also stated its intention to have an in-depth study of the enforcenent program performed by a small conmittee of individuals selected iron outside the agency. The Advisory Canmittee for Review of the Enforcement Policy was formally established by the hT:C on August 31,1984. (49 FR 35273, Septenber 6,1984).
In addition to con-sidering the cmments already sutmitted to the Connission, the Cmmittee solic-ited further conments fran interested persons on the extent to which the NRC's enforcenent policy had been serving the purposes announced by the Cmmission, including the policy on material false statenents. (50 FR 1142, January 9, 1985). Public meetings were held by the Cmmittee during which 46 witnesses drawn fran NiC stafi, Iicensees, industry groups and Iaw/ consulting groups gave testirx;ny to the Cmmittee, many cmmenting on the material false statement policy.
In its Report sutaitted to the Camission on November 23, 1985 the Cannit-tee made the following reconnendation:
De material false statenent policy should be changed to limit cita-tions for material false statements to written statunents or sworn testimony made knowing the statenent was incorrect or made with care-less disregard for correctness.
If incorrect oral staternents or anissions are to be cited, it should be under another label.
De Cmmittee concluded that the application of the label material false state-ment to unintended and inadvertent statements and miissions, as well as to in-tentional ones, will ultimately, if it has not already, impede the flow of infonnation to the Cannission. D e evidence of growing pressure towstd limit-f f
ing oral cmmunications was found to be especially apparent.
In addition, the i
labeling of honest errors as material false statenents was found to have a
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" depressing effect on utility staff morale" and to see extent limited an or-ganization's ability to " recruit and retain capable staff." Cantnittee Report at 24. De indistinctness in defining what is required to avoid a material false statment citation for an mission creates an " uncontrollable and open-ended liability" for licensees, which, considering the high cost to the utility of such a citstion, is an " unreasonable and unfair burden." Cmmittee Report at 26.
In its meeting with the Cannission on Deceber 10, 1985, several of the Canmittee members elaborated on their reconinendation. Briefly, they indicated that oral ecmnunications can be made by anyone within the licensee's organiza-tion and, unlike written conmunications, the 1icensee general 1y has no way of controlling the exchange or of assuring that the statement in fact represer.ts the licensee's position.
It is very dif ficult as a matter of proof to recon-struct what exactly was said for an oral statment. D ere will likely be dis-putes about what is said and whether the misstatenent. if there was one, was intentional, accidental, negligent or reckless.
It is reasonable to reserve the category of " material false statenents" to written or sworn statenents where there is another mechanism for penalizing oral statements, e.g., as inac-curate infonnation, and v41ere the penalty can be as severe as for those state-ments labeled material false statements.
It the Cmmission persists in labeling oral statements as material false staternents, Cmmittee msnbers recam-mended that the Camission limit and define the pecple in licensee organiza-tions who are capable of making oral material false statements and provide sme description of the circunstances in which they have to be aware that they carry that liability.
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With respect to the citation of missions as material false statments, several Cmmittee members indicated that it is such a wide open potential source of liability, that even though the nmber of such citations is small, the perception of vulnerability in the regulated conmunity is pervasive. Al-though an egregious omission case can be posed where the strongest sanction including the label material false statment is warranted, the day-to-day cases will be more ambiguous and dif ficult situations. Fr a the standpoint of an ef fective enforcement program, deterrence does not suf fer if an occasional egregious mission or oral statment is cited as inaccurate information with a civil penalty for a severity level one or two violation, rather than as a mate-rial false statenent with a civil penalty of similar sevarity level.
In view of the concerns which have been developing within the Carnission and which are evident fram the public conments and the efforts of the Advisory Cmmittee, principally with the application of the " material false statement" label to unintentionally inaccurate information, the Cmmission has detennined that changes are necessary to: (1) the manner in which its standards for accu-l l
racy in information provided to or maintained for Conmission inspection are l
l articulated for licensees and applicants; and (2) its current material false statenent policy articulated in the Comission's VEPCO decision and in the En-forcanent Policy in Appendix C to Part 2 of the Ccmnission's regulations. %e Cmmission has concluded that a new requirenent should be placed in each of the licensing sections of the Cenission's regulations which sets forth an appli-cant's and a licensee's obligations concerning accuracy and empleteness in their cmmunications with the hTtC and in the records required to be maintained by the Camission. De Cmmission believes this approach will continue to pro-vide incentives for applicants and licensees to scrutinize their internal l
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operations to determine that information provided to the NRC is complete and accurate and that records maintained in accordance with Conmission require-ments are complete and accurate and give the Conmission greater flexibility to enforce these obligations without invoking the negative connotations about a licensee's character by a citation for a naterial false statement in cases in-volving an unintentionally inaccurate or incmplete subnittal.
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'Ihe new regulations include identical provisions in Parts 30, 40, 50, 55, 60, 61, 70, 71, 72, and 110 which contain two elements:
(1) a general provi-sion which requires that all information provided to the Camission by an ap-
. plicant or licensee or required by the Cmmission to be maintained by the applicant or licensee shall be cuuplete and accurate in all material respects; and (2) a reporting requirenent to replace the full disclosure aspects of the
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current material false statenent policy that would require applicants and 11-censees to report to the NEC information identified by the applicant or licens-ce as having a significant implichtion for the public health and safety or ccrmon defense and security. Section 150.20 is being amended to provide that when an Agreer.ent State 1icensee is operating within NRC's jut l.a etion under the general license granted by 5 150.20, the licensee is subject to the hbove requirements.
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'Ihese regulations are being issued under the Cmmission's authority in i
sections 62, 63, 65, 81, 82, 103, 1J4, 161(o), IS2, and 274 as vrell as 186 of the Atanic Energy Act of 1954, as amended. hhile cection 186 can be read as g -
addressing only material false statenents mado in certain contexts, the scope of the Conmission's responsibilities under the Atanic Energy Act of 1954, as s
smended, and the Energy I'.eorganization Act of 1974, as well as the Camission's decision in the VEPCD case and subsequent enforcanent actions utMer that
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. rl statement of thellaw, make it clear that the Cannission has the inherent au-thority to require camiunications with the agency on regulatory matters to be canplete and accurate regardless of their context. Under section 186 of the
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Atanic Energy Act failure to observe any of the terms or provisions of' any reg-ys ulation of the Cannisaton is an explicit basis for revocation of a license.
Thus, with the adoption of these new regulations regarding accuracy in conmuni-cations and records, a violation of paragraph (a) or(b) of the proposed rule may be grounds for revocation of a license as well as imposition of civil pen-
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3alties under scetion 234 of the Atanic Energy! Act.
p Paragraph (a) of the proposed rule wculd codify in a unifortn manner an applicant's and a licensee's obligation, as articulated in the VIRD decision, to ensure the accuracy of its connunications with the Cannission. The provi-sion does not create any new obligations for licensees and applicants; rather, it descriMs in a regulation rather than in an adjudicatory decision, the stan-dard for accurkey to be adhered to when supplying information to the agency or when generating and maintaining records required to.be kept by the Camiission.
The standard described in paragraph (a) of the proposed rule, "conplete and accurate in all naterici respects," continues the degree of accuracy prer.cribed in the VEPCD decision; that is, any.infortnation provided to the Cannission or maintained in records required by the Cam 1ission which has the ability to in-l l
fluence the agency in the ccnduct of its regulatory responsibilities must be conplete and accurate.
Under this proposed rule, not only material incorrect information, written or oral, but omitted infortuation which causes an af firmative statenent to be materially incanplete or inaccurate, will be subject to sanctions. The pro-posed rule uses the phrase "provided to the NRC" rather than "sutruitted to the l
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NRC" to ' indicate that all cannunications, oral or written, throughout the tenn
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of the license, not just at the cpplication stage, are expected to be conplete and accurate. De Comnission intends. to apply a rule of reason in assessing canpleteness of a connunication. For example. in the context of reviewing an
- initial application or a renewal application for a license, it is not unemmon -
for an tac reviewer to seek additional infonnation to clarify his or her under-standing of the infonnation a1 ready provided. Such an inquiry by the NRC does not necessarily mean that incmplete infomation which would violate this rule has been sutunitted.
H is new provision also makes explicit the requirement that records re-quired to be maintained by the Cmmission must be complete and accurate in all material respects.
It is clear that when the Conmission establishes a require-ment that a licensee generate records to docunent a particular licensed activi-ty, inherent in that requirenent is the expectation that those records will accurately reflect the activities accomplished.
In the past, when the Cmmis-sion has discovered that inaccurate or incanplete records have been developed or maintained, citations have been issued for violation of the underlying t
recordkeeping requirement. Now that the Cancission is adopting a regulation which states a generic requirenent for accuracy in infonnation made available to the agency, it was deemed desirable to eglicitly refer to infonration kept in records pursuant to Comnission requirenents for inspection 9/ the 13C, as j
well as.infonnation sutmitted to the NRC, since the standard for accuracy and j
completeness is the same for all infonnation in whatever fonn it is made avail-i able to the Cmmission. His explicit statenent of the standard of accuracy i
required for records does not in any way change existing recordkeeping require-ments or add to the kind or nature of records expected to be maintained.
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. Paragraph fb) of the proposed rule codifies in a modified fom, and re-places, the " full disclosure" aspects of licensees' and applicants' obligations established by the VEPW decision.
In that decision the Cmmission recognized 4
its obligation "to promulgate regulations which provide clear, canprehensive guidance to applicants and licensees," VEPCD at 489, but went on to conclude that.
[T]he fact renains that no specific set of regulations, however carefully drawn, can be expected _to cover all possible ciretznstances.
Infomation may cane from unexpected sources or take an unexpected fom, but if it is material to the licensing decision and therefore to the public health and safety, it must be passed on to the Comnission if we are to perfom our task....
Since the initial oescription of the " full disclosure" requiranent in VEPG, however, reporting obligations for substantial additional categories of significant safety infonnation have been affimatively established, e.g.,
10 CFR S 21.21, and 10 CFR SS 50.72 and 50.73. Both material anc reactor li-censes contain nirnerous reporting requiranents. Most safety information which a licensee may develop will likely be required to be reported by sar.e specific requirement. Nevertheless, there may be some ciretrnstances where a licensee possesses sane residual safety infonnation which eculd af fect licensed activi-ties but which is not otherwise required to be reported.
Therefore, the proposed rule provides that if a licensee or an applicant l
l identifies infonnation v.tilch has significant implications for public health and safety or the canncn defense and security, it must be reported to the
-- Camission. D e rule makes clear that reporting under this section is not re-quired if such reporting would duplicate infonnation already sutmitted in ac-
- cordance with other requirements such as 10 CER SS 20.402
.408, 21.21, 50.34, 50.71, 50.72, 50.73, and 73.71.
Consideration was given to proposing a more broadly worded requirment such as "each applicant or licensee shall notify the Canission of infonnation material to the regulatory process." D e Ca mission concluded, however, that with such a fonuulation of the rule, with essentially no guidance on how to detenaine what must be reported, it would be difficult for 1icensees cr appli-cants to predict with any certainty what the Camission will dem to be materi-al. Such a rule would likely provide little incentive for licensees or applicants to scrutinize or police their infonration gathering process for re-portable infonnation. De purpose of the reporting requirernent which is being proposed is to provide clear notice that if any applicant or licensee recogniz-es it has infonnation with significant health or safety or eminon defense or security implications, the infonnation r.iust be reported to the hT.C notwith-standing the absence of a specific reporting requiranent. Sutrnission of a re-port depends upon the licensee's recognition of the significance of the infonnation.
i De codification of a full disclosure requirtanent in this manner should not result in additional burdens on applicants and licensees. Licensees and applicants will not be required to develop fonnal programs similar to those prescribed under 10 CFR Part 21 to identify, evaluate, and report int'onnation.
bhat is expected is a professional attitude toward safety throughout a licens-ee's or applicant's organization such that if a person identifies same poten-tial safety infonnation, the intonnation will be freely provided tc the
- appropriate company of ficials to detennine its safety significance and report-ability to the Conmission..
While proposed paragraph (b) defers to the licensee's jud; nent of the sig-nificance of infonnation, the Iicensee's "identificatlon" of the significance of the infonnation need not be in the fonn of a specific docunented decision before a violation of the rule exists for failure to report. An applicant's or licensee's recognition of infonnation as significant could be established by the fact that specific meetings were held to discuss the matter, analyses perfonned or other internal actions taken to evaluate the matter.
In addition, abuse of a licensee's responsibility under paragraph (b), if not punishable as a violation of paragraph (b), could be addressed by the Cannission under its authority to issue orders to modify, suspend or revoke a license. For example, an orcer would be appropriate where the action of a licensee in not recognizing the significance of the infonnation and failing to report it, together with other relevant f acts, raises serious questions about either its canpetence, i.e.,
its ability to evaluate information, or its trustworthiness, i.e.,
its failure to consider potentially significant information for evaluation.
Finally, the Cannission has decided to exercise its discretion in the sp-plication of the tenn material false statenent to misconnunications and limit use of the term to situations where there is an elenent of intent. A charge of material false statenent is equated by the public and most people in the indus-try with lying and intention to mislead. Yet under the current policy, a mate-rial false statenent under the Atanic Energy Act can be either an af finnative statenent, oral as well as written, or an emission, and can be unintended and inadvertent as well as intentional. The Advisory Cunnit tee concluded that 1
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- - enforcement of accuracy in connunications by citations for a material false statement is "too blunt and heavy an instrument to be effective in achieving improved accuracy and completeness of information given to the NRC by licens-ees." De Cannission agrees. D e free flow of information fr a applicants and licensees is essential to the effectiveness of the NRC's regulatory program. A policy of sanctions for inaccurate infomation which has the likelihood to im-pede infonnation flow, or which causes licensees to concentrate on limiting and qualifying what they say rather than on the quality of the infomation provided in order to avoid being charged with lying, does not serve the interests of the NRC.
B is change recognizes the negative connotations which are associated by the public and the industry with the tenn naterial false statement but retains the use of this label as an additional enforcement tool in egregious situa-tions, which will be detemined on a case-by-case basis. De Ccmnission ex-pects to use the tem rarely because with the adoption of this proposed rule, the Consission will have the mechanism to apply the full range uf enforcanent sanctions to inaccurate emmunications or records without reliance cn the tem material false statement. Consequently, the Camission sees no need to develop a specific definition of the term " material false statenent."1 The Department 1
Any characterization or use which the Comission gives to the tem materi-al false statenent as used in the Atanic Energy iwt of 1954, as snwnded, is, of course, limited to the Cmmission's civil enforcer.ent actions and has no legal impact on the meaning given to similar tems and phrases used in other statutes, eg,18 U.S.C. 5 1001, or on the cuthority of the Department of Justice to prosecute under such statutes. D us, regardless of what enforcement action NPC may take for a comunication failure, the failure may be subject to criminal sanctions.
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e of Justice supports this approach in view of the potential for confusion fran the Consission's use of the tenn material false statenent in its civil context and prosecutions for material false statements under 18 U.S.C. S 1001. Ilowever, should a violation of the proposed requirement for complete and accurate infor-mation be labeled as a material false statenent,.it is expected that the carmu-nication failure will be flagrant and involving, for example, instr.nces (1).
where an inaccurate or incanplete written or sworn oral statenent is'made knowing the statement is inaccurate or incomplete, or with careless disregard for its accuracy or canpleteness; or (2) there an inaccurate or incanplete un-sworn ora 1 statenent is made with a cIear1y denonstrable knowledge of its inac-curacy or incmpleteness.
The Camission's existing material false statement policy is currently reflected in the General Statement of Policy and Procedure for NRC Enforcement Actions, 10 C.F.R. Part 2 Appendix C.
Modifications to this policy to reflect the new rules and the changes to Counission policy announced here will be it.ade.
. at the time a final rule on this subject is adopted by the Cmmission.
&VilDEfrAL DPACT: C\\TIDERICH. EXCIIISl(N With respect to the proposed amerxhents to 10 Cm Parts 30, 40, 50, 60, f
61, 70, 71, ard 72, the NRC has detemined that the proposed rule is the type of action described in categorical exclusion 10 CFR S 51.22(c)(3). The NRC has also detennined that the proposed amendments to 10 Cm Parts 55,110, arel 150 meet the eligibility criteria for the categorical exclus.on described in 10 C m 5 51.22(c)(1). Accordingly, neither an envirorsnental impact statenent nor an environnental assessment has been prepared in connection with the issuance of the proposed rule.
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' PAPHBOtK RHXJCrKN ACT SIXIEWENT his proposed rule would add a specific information collection' requirenent
-that is' subject to the Paperwork Reduction Act of 1980 (44.U.S.C. 3501 et seq.).
Bis proposed rule is being sutroitted to the Office of Management and Budget
.or review and approval of the paperwork requirenent.
!!HX lAIORY ANALYSIS De Cannission's current requirement for accuracy and ccmpleteness of in-formation provided to the Ccenission is specified in the adjudicatory decision rendered with respect to'an enforcement action taken against Virginia Electric Power Canpany in 1976. De proposed rule would articulate this requirenent, which governs the day-to-day interactions between NRC personnel and licensees and applicants, in a regulation issued under the Cannission's general authority
. to establish instructions for the provision of infonnation and reports to the t
Cannission rather than by interpretation of the material false statement provi-sion of Section 186 of the Atomic Energy Act in an adjudicatory decision. Cod-ifying this requirement is preferable to the only alternative, which is continued reliance on the adjudicatory decision, as the only statenent of the requirenent. Codification of the requirement will give the regulated connunity more explicit and accessible notice of the standards of accuracy expected of it and will give the Cannission greater flexibility to enforce these standards without unnecessarily applying the label material false statenent to connuni-F l-cations from licensees and applicants.
In view of the extensive public com-ments and the recaninendations 01 the Advisory Cannittee for Review of the Enforcenent Policy roccived in response to the emmt.. inn's reques t rne cy,1yg.
tion of the existing practice and proposed changes to it, it is apparent that
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l this proposed rule is the preferred alternative and the cost entailed in its prmulgation and application is necessary and appropriate. The foregoing dis-cussion constitutes the regulatory analysis for 'this proposed rule.
BAGFIT SIWlHET
'Ihe proposed rule codifies the existing obligations of applicants and 11-censees to provide infonnation relating to licensed activities which could have significant implications for those activities and to ensure that all infonna-tion provided to the Connission or maintained pursuant to Conmission.
requirenents is emplete and accurate in all material respects..The Camission has detennined, therefore, that the backfit rule,10 CFR S 50.109, does not apply to the proposed rule. The rule is purely administrative in nature, and therefore does not result in the " modification of or addition to systens, structures, components, or design of a facility...or the procedures or organ-1::ation required to design, construct, or operate a facility..." See 10 CET. S 50.109(a)(1).
HIELGmY FLEXIBIL1'lY CH!IIFICATICN As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b),
and consistent with NRC's Size Standards publinhed Decer.ber 9, 1985 (50 FR 50241), the Camission certifies that this rule, if adcpted, will not have a significant econanic impact upon a substantial ntsnber of small entities. The proposed rule, which will affect large and small licensees alike, merely codi-l fies an existing requirenent, established through an adjudicatory decision, t
that all information provided to tha Cmmissinn relating en ite nsad gettytties l
l or maintained pursuant to Cannission requirenents be complete and accurate in
. all material respects.
In addition, the proposed rule, if adopted, would re-duce the existing burden on licensees because the full disclosure aspect of the current judicially imposed requirement has been modified to limit it to that inforumtion which the licensee itself has detemined has a significant implica-tion for licensed activities.
Any small entity subject to this regulation which detemines that, because of its size, it is likely to bear a disproportionate adverse econmic impact should notify the Casnission of this in a cenment that indicates the fo!! awing:
(a) 'lhe licensee's size in tems of annual incee or revenue, and ntmber of eployees; (b) How the proposed regulation would result in a significant economic burden upon the licensee as compared to that on'a larger licensee; (c) How the proposed regulations could be modified to take into account the licensee's differing needs or capabilities.
LIST OF SUB.lECIS IN 10 CER PARIS 30, 40, 50, 55, 60, 61, 70, 71, 72,110, and 150 Pr.rt 30 - Byproduct material, Goverment contracts, Intergovermental relations, Isotopes, Nuclear materials, Penalty, Radiation protecticri, Report-ing and record keeping requir ments.
Part 40 - Goverment contracts,1:azardous materials - transportation, Nu-clear materials, Penal ty, Reporting requirenents Source material. Uraniub.
Part 50 - Antitrust, Classifico info mation, Fire prevention, Incorpora-tion try reterence, intergovermental relations, Nuclear mmer plunis and renc-
21 tors,. Penalty, Radiation protection, Reactor siting criteria, Reporting requirements.
Part 55 - Manpower training programs, Nuclear power plants and reactors, Penalty, Reporting and recordkeeping requirements.
Part 60 - High-level waste, Nuclear power plants and reactors, Nuclear materials, Penal ty,' Reporting and recordkeeping requirenents. Waste treatment and disposal.-
Part 61 - low-level waste, Nuclear materials, Penalty, Reporting and recordkeeping requirenents, Waste treatment and disposal.
Part 70 - Hazardous materials - transportation, Nuclear materials, Packag-ing and containers, Penalty, Radiation protection, Reporting and recordkeeping requirenents, Scler tific equipnent, Security measures, Special nuclear material.
Part 71 - Hazardous materials - transportation, Nuclear materials, Packag-ing and containers, Penalty, Reporting and recordkeeping requirenents.
Part 72 - Manpower training programs, Nuclear materials, Occupational safety and health, Reporting and recordkeeping requirmlents, Security measures, Spent fuel.
Part 110 - Administrative practice and procedure. Classified inf ormation, E::por t, Impor t, Intergoverrrnental relations, Nuclear materials, Nuclear power i
plants and reactors, Penalty, Reporting and recordkeeping requirements, Scien-tific equipnent.
Part 150 - Hazardous materials - transportation, Intergoverrrnental rela-tions, Nuclear materials, Penalty, Reporting and recordkeeping requirenents, j'
Security measures. Source material. Special nuclear material.
.~
~
- For the reasons set out in the preamble and under the autnority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, the NIC is proposing to adopt the following amendments to 10 CFh Parts 30, 40, 50, 55, 60, 61, 70, 71, 72,110 and 150.
PART 30 - ItLTIS OF GENERAL APPLICABILITY TO DCNESTIC LICDiSLNG OF BUHTCCF.YATERIAL 1.
The authority citation for Part 30 is revised to read as follows:
AUDERIn*: Secs. 81, 82, 161, 182, 183, 186, 68 Stat. 935, 948, 953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2111, 2112, 2201, 2232, 2233, 2236, 2282); secs. 201, as amended, 202, 206, 68 Stat. 1242, 1244, 1246 (42 U.S.C. 5841, 5842, 5846).
Section 30.7 also issued under Pub. L 95-601, sec. 10, 92 Stat. 2051 (42 U.S.C. 5851). Section 30.34(b) also issued under sec.184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 30.61 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):
SS 30.3, 30.34(b) and (c), 30.41(a) and (c), and 30.53 are issued under sec.
161b., 68 Stat. 948 as amended (42 U.S.C. 2201(b)); and SS 30.6, 30.9, 30.36, 30.51, 30.52, 30.55 and 30.56(b) and (c) are issued under sec.161o, 66 Stat.
950, as amended (42 U.S.C. 2201(o)).
2.
Intnediately following $ 30.8, a new 5 30.9 is cdded to read as follows:
5 30.9 Q1npieteness ano accuracy or intonnation.
~~.,
- Information provided to the Carmission by an applicant for a a.
-license or by a licensee or information required by statute or by the Conmission's' regulations, orders, or license conditions to be main-tained by the applicant or the licensee shall be complete and accu-rate in all material respects, b.
Each applicant or licensee shall notify the Camission of information identified by the applicant or licensee as having for the regulated activity a significant implication for public health and safety or cannon defense and security. An applicant or 1icensee violates this paragraph only if the applicant or licensee fails to notify the Can-mission of information that the applicant or licensee has identified as having a significant implication for public health and safety or cmmon defense and security. Notification shall be provided to the Administrator of the appropriate hegional Office within two working days of identifying the information. 'Ihis requirement is not appli-cable to information which is already required to be provided to the Cmmission by other reporting or updating requirenents.
PART 40 - DOWESTIC LIGNSim OF SCCRCE h" TRIAL 3.
'Ihe authority citation for Part 40 is revised to read as follows:
NJIN.RITY: Secs. 62, 63, 64, 65, 81, 161, 182, 183, 186, 68 Stat.
932, 933, 935, 948, 953, tis 4, 955, as amended, secs.11(e)(2), 83, 84, Pub. L.95-604, 92 Stat. 3033, as amended, 3039, sec 234, 83 Stat. 444, as amended ( 42 U.S.C. UU14t elt ;>, 2092, 2693, 2004, 2095, 2111, 2113, 2114, 2201, 2132, 2236, 2282); sec. 274, Pub. L.86-373, 73 Stat. 688 (42 U.S.C.
._. _.~.- _ _- __-_ -
e,,
- 2021); secs 201, as amended. 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 275, 92 Stat. 3021, as amended by N --
Pub. L.97-415, 96 Stat. 2067 (42 U.S.C. 2022).
Section 40.7 also issued under Pub. L.95-601, sec.10, 93 Stat. 2951 (42 U.S.C. 5851). Section 40.31(g) also issued under sec.122, 68 Stat.
939 (42 U.S.C. 2152). Section 40.46 also issued under sec. 184, 68 Stat.
954, as amended (42 U.S.C. 2234). Section 40.71 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), SS 40.3, 40.25(d)(1)-(3), 40.35(a)-(d), 40.41(b) and (c), 40.46, 40.51(a) and (c), and 40.63 are issued unaer sec. 161b, 68 Stat. 948 as amended, (42 U.S.C. 2201(b)); and SS 40.5, 40.9, 40.25(c), (d)(3), and (4),- 40.26(c)(2), 40.35(e), 40.42, 40.61, 40.62, 40.64 and 40.65 are is-sued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
4.
Inmeciately following 5 40.8, a new $ 40.9 is added to read as follows:
5 40.9 Cmipleteness and Accuracy of Infortnation.
4 a.
Information provided to the Conmission by an applicant for a license or by a licensee or information required by statute or by the Cemnission's regulations, orders, or license conditions to be main-tained by the applicant or the licensee shall be cmrplete and accu-i rate in all naterial respects.
h.
C&ch epplicent or licensee 6 hell r.otify the Ocinuionion of iniumation identified by the applicant or licensee as having for the regulated i
1
- activity a significant implication for public health and safety or cmmon defense and security. An applicant or licensee violates this paragraph only if the applicant or licensee fails to notify the Can-mission of infonnation that the applicant or licensee has identified as having a significant implication for public health and safety or carnon defense and security. Notification shall be provided to the Adninistrator of the appropriate Regional Of fice within two working days of identifying the infonnation. Bis requirenent is not appli-cable to infonnattor which is already required to be provided to the Carnission by other reporting or updating requirements.
PART 50 - DOESrlC LICIESim OF PfGXITim AND LTILIZATIW FACILITIES 5.
The authority citation for Part 50 is revised to read as follows:
AIIIIKX111Y: Sees. 103, 104, 101, 182. 183, 166, 189, 68 Stat. 936, 937, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 1244, as amended (42 U.S.C. 2133, 2134, 2101, 2232, 2233, 2236, 2139, 2282); secs. 201, 202, 206, 88 Stat. 1242, 1244, 1246 as amended (42 U.S.C. 5841 5842, 5846), unless otherwise rioted.
Section 50.7 also issued under Pub. L. 95-Gul, sec. 10, 92 Stat. 2951 (40 U.S.C. 5851), Sections 50.58, 50,91 and 50.92 also issued urder Pub.
L.97-415, 96 Stat. 2073 (42 U.S.C. 2239). Section 50.78 also issued un-cer sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Sectic,ns $0.80-50.81 also tssuea unner sec.164, oe citat. 954, as moended (42 U.S.C. 2234). See-i i
9 he.,.., - _ _
3 m
~
i 26-tions 50.100-50.102 also issued under sec. 186, 68 Stat. 955 (42 U.S.C.
2236).
For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C.
2273); SS 50.10(a), (b), and (c), 50.44, 50.46, 50.48, 50.54, and 50.80(a) are issued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b));
SS 50.10(b) and (c) and 50.54 are issued under sec. 1611, 68 Stat. 949, as amended (42 U.S.C. 2201(i)); and SS 50.S, 50.55(e), 50.59(b), 50.70, 50.71, 50.72, 50.73, and 50.78 are issued under sec. 161o, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
6.
Inmediately following S 50.8, a new S 50.9 is added to read as follows:
5 50.9 Ccrnpleteness and Accuracy of Infortnation.
a.
Infonnation provided to the Cenission by an applicant for a license or by a licensee or inforriation required by statute or by the Ccnmission's regulations, orders, or license conditions to h main-tained by the applicant or the licensee shall be complete ard accu-rate in all material respects.
b.
Each applicant or licensee shall notify the Ccomission of inforination identified by the applicant or licensee as having for the regulated activity a significant implication for public health and safety or 1
camion defense and security. An applicant or licenseo vio,ates this paragraph only if the applicant or licensee fails to notif" the Cam-missicn of infortration that the applicant or licensee has identifieo as having a significant implication for public health and safety er t
-.n, n-,,
.---.,,,-,.,-,...------n---
- connon defense and security. Notification shall be provided to the Administrator of the appropriate Regional Office within two working days of identifying the infonnation. 'Ihis requirenent is not appli-cable to information which is already required to be provided to the Ccmnission by other reporting or updating requirenents.
PN?r 55 - OPa%70HS' LICDiSES 7.
The authority citation for Part 55 is revised to read as follows:
AUIKEITY: Secs. 107, 161, 68 Stat. 939, 948, as amended (42 U.S.C.
2137, 2201); secs. 201, as amended, 202, 88 Stat.1242, as amended,1244 (42 U.S.C. 5841, 5842).
Section 55.40 also issued under secs. 186, 187, 68 Stat. 955 (42 U.S.C. 2236, 2237).
For the purposes of sec. 223, 60 Stat. 958, as amended (4" U.S.C.
2273), SS 55.3 and 55.31(a) - (d) are issued under sec. 1611, 68 Stat.
949, as amended (42 U.S.C. 2201(1)); and SS 55.6b, 55.0 and 55.41 are is-sued under sec.161o, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
8.
Inmediately following S 55.6a, a new 5 55.6b is added to read as follows:
S 55.6b Ccrnpleteness and Accuracy of Infonnation.
a.
Infonnation provided to the Lomnission by an applicant for a license or by a licensee er infonnation required by statute or by the Ca mission's regulations, orders, or license conditions to be
.- maintained by the applicant or the licensee shall be cmiplete and accurate in all material respects, b.
Each applicant or licensee shall notify the Camission of information identified by the applicant or licensee as having for the regulated activity a significant implication for public health and safety or emmon defense and security. An applicant or licensee violates this paragraph only if the applicant or licensee fails to notify the Com-mission of information that the applicant or licensee has identified as having a significant implication for public health and safety or cmmon defenso and security. Notification shall be provided to the Administrator of the appropriate I<egional Office within two working days of identifying the information. 'Ihis requirement is not appil-cable to information which is already required to be provided to the Comnission by other reporting or updating requirenents.
PNYr 60 - DISPOSAL OF HIGI IEEL ltAD10ALTIVE hAS'IES IN CIROGIC REPOSl'IMIES 9.
'Ihe authority citation for Part 60 is revised to read as follows:
AUDall'lY: Sees 51, 53, 62, 63, 65, 81, 161, 182, 183, 6b Stat.
929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071, 2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233), secs 202, 206, SE Stat. 1244, 1246 (42 U.S.C. 5842, 5846); secs.10 and 14, Pub. L.95-601, 9" Stat.
2951 (42 U.S.C. 2021a and 5851); sec.102, Pub. L.91-190, 83 Stat. 853
- (42 U.S.C. 4332); sec. 121, Pub. L.97-425, 96 Stat. 2228 (42 U.S.C.
10141).
For the purposes of sec. 223, 68 Stat. 958, as snended (42 U.S.C.
2273), SS 60.8a, 60.71 to 60.75 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
10.
Innediately following 5 60.8, a new 5 60.8a is added to read as follows:
$ 60.8a Completeness and Accuracy of Infortnation.
a.
Infonnation provided to the Comnission by an applicant for a license or by a licensee or information required by statute or by the Conmission's regulations, orders, or license conditions to be main-tained by the applicant or 'he licensee shall be complete and accu-rate in all naterial respects, b.
Each applicant or licensee shall notify the Cannission of infonnation identified by the applicant or licensee as having for the regulated activity a significant implication for public health and safety or cannon defense and security. An applicant or licensee violates this paragraph only if the applicant or licensee fails to notify the Com-mission of information that the applicant or licensee has identified au having a significant inplication for public health and safety or cannon def ense and security. Notification shall be provided to the Administrator of the appropriate Regional Office within two working days of identifying the infonnation. This requirenent is not appli-I e
- . cable to infortnation which is alresay required to be provided to the Cannission b other reporting or updating requirenents.
/
PNfr 61 - LICENSING REQJIR12.1NIS KR IRD DISPOSAL OF RADIGETIVE WAS'IE
- 11. The authority citation fer Part 61 is revised to read as follows:
NmKEITY: Secs. 53, 57, 62, 63, 65, 81, 161, 182, 183, 66 Stat.
930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2073,'2077, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88 Stat. 1244, 1246, (42 U.S.C. 5842, 5846); secs. 10 and 14, Pub. L.95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5851).
Fcr the purposes of Sec. 223, 68 Stat. 958, as amended, (42 U.S.C.
2273); Tables 1 and 2, $5 61.3, 61.24, 61.25, 61.'J(a), 61.41 through 61.43, 61.52, 61.53, 61.55, 61.56, and 61.61 through 61.63 are issued un-der sec.161b, 68 Stat. U48, as amended (42 U.S.C. 2201(b)); SS 61.8a, 61.10 through 61.16, 61.24, and 61.80 are issued under sec.161o, 68 Stat.
950, as amended (42 U.S.C. 2201(o)).
12.
Inmediately following 5 61.8, a new S 61.8a is added to read as follows:
5 61.8a Completeness and Accuracy of Information.
a.
Infortnation provided to the Camission by an applicant fcr a license or by a licensee or infortnation required by statute or by the Cannission's regulations, orders, or license conditions to be
. maintained by the applicant or the licensee shall be emplete and accurate in all material respects.
b.
Each applicant or 1icensee shal1 notify the Ccmnission of infomation identified by the applicant or licensee as having for the regulated activity a significant implication for public health and safety or ccmnon defense and security. An applicant or licensee violates this paragraph only it' the applicant or licensee fails to notify the Can-mission of infonnation that the applicant or licensee has identified as having a significant implication for public health and safety or cannon defense and security. Notification shall be provided to the
<Wninistrator cf the appropriate llegional Of fice within two working days of identifying the infonnation. 'Ihis requirement is not appli-cable to infonnation which is already required to be provided to the Ccmnission by other reporting or updating requirenents.
PedE 70 - IX.NESTIC LICIllS110 OF SPECIAL NCCLEV1 ?.WERIAL
- 13. 'Ihe authority citation t'or Part 70 is revised to read as follows:
NIIIUll'IY: Sees. 51, 53, 161. 182, 183, 68 Stat. 929, 930, 948, 953, 954, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2071, 2073, 2201, 2232, 2282); secs. 201, as amended. 202, 'J04, 206, 88 Stat.1242, as amended, 1244, 1245, 1246 (42 U.S.C. $841, 5842, 5845, 5846).
Section 70.7 also issued under Pub. L.95-601, sec.10, Si Stat. 2951 (42 U.S.C. 5851). Secticn 70.21(g) also issued under sec.122, 08 Stat.
939 (42 U.S.C. 2152). Section 70.31 also issued ander sec. 57d, Pub. I..
.93-377, 88 Stat. 475 (42 U.S.C. 2077). Sections 70.36 and 70.44 also is-sued under sec.184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 70.61 also' issued under secs. 186, 187, 68 Stat. 955 (42 U.S.C. 223G, 2237). Section 70.62 also issued under sec.108, 68 Stat. 939, as amended (42 U.S.C. 2138).
For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C.
2'273); $$ 70.3, 70.19(c), 70.21(c), 70.22(a), (b), (d) - (k), 70.24(a) and (b), 70.32(a)(3), (5), (6), (d), and (1), 70.36, 70.39(b) and (c),
{
70.41(a), 70.42(a) and (c), 70.56, 70.57(b), (c), and (d), 70.58(a)-(g)(3) and (h)-(j) are issued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b); $ 70.7, 70.20af a) snd (d), 70.20b(c) and (e), 70.21(c),
70.24(b), 70.32(a)(6), (c), (d), fe), and (g), 70.36, 70.51(c) - (g),
70.56, 70.57(b) and (d), and 70.58(a)-(g)(3) and (h)-(j) are issued under
~
sec. 1611, 68 Stat. 949, as amended (42 U.S.C. 2201(i)); and SS 70.5, 70.9, 70.20b(d) and (e), 70.38, 70.51(b) and (i), 70.52, 70.53, 70.54, 70.55, 70.58(g)(4), (k), and (1), 70.59 and 70.60(b) and (c) are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
14.
Inmediately following 5 70.8, a new S 70.0 is added to read as follmis:
$ 70.9 Completeness and Accuracy of Infomation.
a.
Infomation provided to the Ccanission by an applicant for a license or by a licensee or infonmtion requirad by statute or h the Cannission's regulations, orders, or Ileense conditlons to be main-
, ?.....
.~ - -... - -
E
. tained by the applicant or the licensee shall be c e plete and accurate in all material respects.
b.
Each applicant or licensee shall notify the Commission of infonnation identified by the applicant or licensee as having for the regulated activity a significant implication for public health and safety or emrnon defense and security. An applicant or licensee violates this paragraph only if the applicant er licensee fails to notify the Cm-mission of infonnation that the applicant or licensee has identified as having a significant implication for public health and safety or cmmon defense and security. Notification shall be provided to the Administrator of the appropriate hegional Office within two working days of identifying the infonnation. This requirement is not appli-cable to infonnation which la already required to be provided to the Comission by other reporting or updating requirenents.
PAlff 71 - PAGAGING AND TRANSPGirATI(.N OF PADIOETIVE NATERIAL
- 15. The authority citation for Part 71 is revised to read as follows:
AUIKRITY: Secs. 53, 57, 62, 63, 81, 161, 182, 68 Stat. 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2073, 2077, 2092, 2093, 2111, 2201, 2232, 2233); secs. 201, as amended. 202, 206, 88 Stat. 1242, as amended, 1244,1246 (42 U.S.C. 5841, 5842, 5646).
i;t,ction "1.07 also is::ued under sec. 301. Pub. I: "-145, 44SM-789-790.
-, -. - - - - + + -. - -, - -,, - - -. + -
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,~
--..y
. For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C.
2273); 55 71.3, 71.43, 71.45, 71.55, 71.63(a) and (b), 71.83, 71.85, 71.87, 71.89, and 71.97 are issued under 'sec.161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b)); and 55 71.5(b), 71.6a, 71.91, 71.93, 71.95, and 71.101(a) are issued under sec.1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
- 16. Inmediately following 4 71.6, a new 5 71.6a is added to read as follows:
5 71.6a Capleteness and Accuracy of Infomation.
Information provided to the Cmmission by an applicant for a a.
license or by a licensee or information required by statute or by the Ca mission's regulations, orders, or license conditions to be main-tained by the applicant or the licensee shall be c e plete and accu-rate in all material respects, b.
Each applicant or licensee shall notify the Cmmission of information identified by the applicant or licensee e.s having tor the regulated activity a significant implication for public health and safety or comon defense and security. An applicant or licensee violates this paragraph only if the applicant or licensee falls to notify the Cm-mission of infomation that the applicant or licensee has identified as having a significant implication for public nealth and safety or uuma, dsfcr.::: cr.d ::ccurity. Notif f eaHon ahnll ha provided to the Administrator of the appropriate t'egional Of fice within two working days of identifying the informatien. This requirment is not
f.
. applicable to infonnation which is already required to be provided to the Cannission by other reporting or updating requirements.
PNTT 72 - LICENSim RIQJIRELE'IS KR '11IE S10tAGE OF SPINT WEL IN AN INDEPENDENT SPENT WEL SIOREE INSTALIArl(N (ISFSI)
- 17. 'Ihe authority citation for Part 72 is revised to read as follows:
AUDERI'lY: Sacs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183, 184, 186, 187, 68 Stat. 929, 930, 932, 933, 934, 935, 948, 953, 954, 955, as amenced, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233, 2234, 2236, 2237, 2282);
sec. 274, Pub. L.88-273, 73 Stat. 688, as amended (42 U.S.C. 2021); sec. 201, 202, 206, 86 Stat.1242,1244,1246, as amended (42 U.S.C. 5841, 5842, 5846); Pub. L.95-601, sec.10, 92 Stat. 2951 (42 U.S.C. 5851); sec. 102, Pub. L.91-100, 83 Stat. 853 (42 U.S.C. 4332).
Section 72.34 also issued under sec. 189, 68 Stat. 955 (42 U.S.C.
2239); sec.134, Pub. L 97-425, 96 Stat. 2230 (42 U.S.C.10154).
For the purposes of sec. 223, 6b Stat. 958, as prended (42 J.S.C.
2273):
55 72.6, 72.14, 72.15, 72.17(d), 72.10, 72.33(b)(1), (4), (5),
(e), (f), 72.36(a) are issued under sec.161b, 68 Stat. 048, as amended (42 U.S.C. 2201(b)); $$ 72.10, 72.15, 72.17(d), 72.33(c), (d)(1), (2),
(e), 71.81, 72.83, 72.84(a), 72.91 are issued under sec. 1611, 18 Stat.
949, as amended (42 U.S.C. 2001(1)); and 65 72.9a, 72.33(b)(3), (d)(3),
(f), 72.35(b), 72.50 - 72.52, 72.53(a), 72.54(a), 72.55, 72.56, 72.80(c),
- 72.84(b) are issued under sec. 1610, 68 Stat. 950, as amended (42 I.'.S.C.
2201(o)).
18.
Inmediately following 5 72.9, a new 5 72.Da is added to read as follows:
S 72.9a C epleteness and Accuracy of Information.
a.
Information provided to the Cmmission by an applicant for a license or by a licensee or information required by statute or by the Cannission's regulations, orders, or license conditions to be main-tained by the applicant or the licensee shall be complete and accu-rate in all material respects, b.
Each applicant or licensee shall notify the Cmmission of information identified by the applicant or licensee as having for the regulated activity a significant implication for public health and safety or cmmon defense and security, in applicant or licenseo violates this paragraph only if the appliccr.t or licensee falls to notify the Cm-mission of information that the applicant or licensee has identified as having a significant implication for public health and safety or comon defense and security. tiotificaticn shall be provided to the Administrator of the appropriate Regional Office within two working days of identifying the information. 'Ihis requirment is not appli-cable to information which is already required to be provided to the Cm mission by other reporting or updating requirement..
PNG 110 - D:KEE AND 15106 CF hUCIS.\\ll IV;115DE RO MATHilAL A!!IlORiiY
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- 19. The authority citation for Part 110 is revised to read as follows:
AUDERI'IY: Secs. 51, 53, 54, 57, 63, 64, 65, 81, 82,103,104,109,111, 126, 127, 128, 129, 161, 181, 182, 183, 187, 189, 68 Stat. S29, 930, 931, 932, 933, 936, 937, 948, 953, 954, 955, 956, as unended (42 U.S.C. 2071, 2073, 2074, 2077, 2092-2095, 2111, 2112, 2133, 2134, 2139, 2139a, 2141, 2154-2158, 2201, 2231-2233, 2237, 2239); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841).
Section 110.1(b)(2) also issued under Pub. L.96-533, 94 Stat. 3138 (42 U.S.C. 2403). Section 110.11 also issued under sec.122, 68 Stat. 939 (42 U.S.C. 2152) and secs. 54c and 57d., 86 Stat. 473, 475 (42 U.S.C.
2074). Section 110.21 also issued under sec. 309(a), Pub. L.99-440.
s Section 110.50(b)(3) also issued under sec. 123, 92 Stat. 142 (42 U.S.C.
t 2153). Section 110.51 also issued under sec.184, 68 Stat. 954, as snend-
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ed (42 U.S.C. 2234). Section 110.52 also issued under sec.186, 68 Stat.
955 (42 U.S.C. 2236). Sections 110.80-110.113 also issued under 5 U.S.C.
552, 554. Sections 110.30-110.35 also issued under 5 U.S.C. 553.
For the purposes of sec. 223, 68 Stat. 058, as snended (42 U.S.C.
2273); 110.20-110.29,110.50, and 110.120-110.129 also issued under secs.
161b and I, 66 Stat. 948, 949, as amended (4'. U.S.C. 2201(b) and (i)); cr.d
$$ 110.7(a) and 110.53 are also issued under sec.161(o), 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
20.
Immediately following 5110.7, a new $ 110.7a is added to reed as follows:
5110.7a Cepleteness and Accuracy of Infomation, t
C s.
Infonnation provided to the Canission by an applicant for a
.m license or by a licensee or infonnation required by statute or by the Cannission's regulations, orders, or license conditions to be rain-tained by the applicant or the licensee shall be complete and accu-i rate in 611 material respects, b.
Each applicant or licensee shall notify the Cmmission of infonnation identified by the applicant or licensee as having for the regulated activity a significant implication for public health and safety or cmmon defense and security. An applicant or licensee violates this paragraph only if the applicant or licensee fails to notify the Cam-mission of infonnation that the applicant or licensee has identified as having a significant implication for public health and safety or cannon defense and security. Notification shall be provided to the Adninistrator of the appropriate llegional Of fice within two working days of identifying the information. 'Ihis ret;uirer.ent is not appli-cable to infonnation which is already required to be provided to the Camission by other reporting or updating requirenents.
PART 150 - kXBFilWS AND CINTINUED 1GALUORY AUUU11W IN KEEDnT
!TTATES AND IN OFFSH[RE WATEP.S Lt0ER SILTICN 274 21.
Ihe authority citation for Pact 150 continues to read as follo6rs:
AUIlullIY: Scc.161, 68 Sta t. 948, as amended, sec. "74, 73 Stat. 688 (42 U.S.C. 2201, 2021); see. 201, 88 Stat. 124", as amended (42 U.S.C. 5841).
Sections 150.3, 150.15, 150.15a, 150.31, 150.32 also issued secs.
11e(2), 81, CS Stat. 923, 935, as amended, secs. 83, 84, 92 Stat. 3033, i
i s
em po o
. 3039 (42 U.S.C. 2014e(2), 2111, 2113, 2114). Section 150.14 also issued under sec. 53, 6C Stat. 930, as unended (42 U.S.C. 2073). Section 150.17a also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 150.30 also lesued under sec. 234, 83 Stat. 444 (42 U.S.C. 2282).
For the purposes of sec. 223, 68 Stat. 958, as smended (42 U.S.C.
2273): 150.20(b)(2)-(4) and 150.21 are issued under sec.161b, 66 Stat.
948, as amended (42 U.S.C. 2201(b)); 150.14 is issued under sec. 1611, 68 Stat. 949, as unended (41 U.S.C. 220lfi)); and 150.16-150.19 and 150.20(b) are issued under sec. 1610, 68 Stat. 950, as ar. ended (42 U.S.C. 2201(o)).
22.
The introductory paragraph of $150.20fb) is revised to read as follows:
5150.20 Recognition of Agreernent State 1icenses.
(b) Notwithstanding any provision to the contrary in any specific license issued by an Agreenent State to a person engaging in activities in a non-Agreement Sta;* or in offshore waters under the general licenses provided in this section, the general licenses provided in this section are subject to the provisions of S$30.7(a) through (e), 30.9, 30.14(d) and
$520.34, 30.41, and 30.51 to 30.63, inclusive, of Part 30 of this chapter; S40.7(a) through (e), S40.9, and $$40.41, 40.51, 40.61, 40.63, inclusive, 40.71 and 40.81 of Part 40 of this chapter; and S70.7 (a) through (e),
S70.9, and 5570.32, 70.4E, 70.51 to 70.56, inclusive, 70.G0 to 70.62, in-clusive, and 70.71 of Part 70 of this chapte ; and to the provisions of Parts 19, 20, and 71 and Subpart B of Part 34 of this chapter.
In addi-n.
6-
.40 tion, any person engaging in activities in non-Agreement States or in offshore waters under the general. licenses provided in this section:
Separate views of Commissioner Asselstine follow.
Dated at % shington, D.C. this' d b day of )f4c4 1987.
For the Nuclear Regulatory Commission.
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$R -
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ohn C. Hoyle A
- ng Secretary of the Commission 9
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'2.-.
SEPARATE VIEWS OF COMMISSICNER ASSELSTINE The Commission's proposal to substitute this regulation for its preser,t standards governing material false statenents suffers from two major flaws.
First, it requires less than the full disclosure required by the Commission in the VEPC0' case. Second, it fails to provide clear guidance to the licensees on what their responsibilities are in reporting information to the f:RC.
The Commission has for ten years used the standards set out in the VEPC0 case when taking enforcement action for misstatements or failures to report information. Licensees and applicants are required to assure that all submissions of material information are complete and accurate, whether made orally or in writing.
In addition, licensees and applicants have an affirrat'ive duty to report all raterial information to the Comission, even -in the absence of a specific reporting requirement in the regulatiers. Material information is that which has the capability of influencing a reascnable agency expert in the conduct of his duties.
That standard is rather broad, but the Cemission has justified such a full disclosure requirement on the ground that it is essential to ensure that the Commission could fulfill its duty to protect the public health and safety.
CLI-76-22, 4 NRC 480, 488. A full disclosure requirement is essential given the audit nature of the ?!RC's regulatory activities.
Because the agency actually observes or inspects only a small portion of a licensee's activities, we must depend heavily on the licensee te identify and report to the NRC any problems which may affect the safety of the public. The full disclosure y
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2 requirement' established in VEPCO.provides assurance that licensees will bring to the agency's attention all. material safety information. Only with all relevant infonnation can the NRC make a thorough appraisal before reaching 'a regulatory decision. While specific reporting requirements'in regulations are
'important to provide guidance to the licensees,'they are not sufficient to ensure full disclosure:
...no set of specific regulations, however carefully drawn, can be expected to cover all possible circumstances.
Information may come from unexpected sources or take an unexpected form, but'if it is material to the licensing decision and therefore to the public health and safety it must be passed on to the Comission if we are to perform our task.
4 NRC 489.
Thus, the Commission properly felt that a full-disclosure provision which is broad enough to ccver all circumstances is necessary. The Commission'said that a bealthy dose of connon sense and a look at the context in which the issue arose would be sufficient to resolve rnost problems which migh+. arise because of the breadth of the requirement. That has, in. fact, been the case in the past ten years.since the VEPC0 decision was issued. The Ccmissior. has used the material false statement violation in a limited number of cases ano only after careful review. The Comission's judicious use of these citations has effectively corrected caficient performance on the part of a few licensees -
and has served as'a reminder to the rest of the industry o' the need for full disclosure of material information.
3 The Comission is no longer willino to rely on comon sense, however. La rgely because of concerns raised about the difficulty of controlling the oral statements _of all licensee employees and about the pejorative connotations of the label " material false statement" the Commission has decided to engage in rulemaking to articulate a modified policy on disclosure of information.
Unfortunately the proposed rule fails to accomplish one of the primary purposes of rulemaking - 10 establish clear guidance to the regulated entities.
Rather, the rule discards well-thought-out and well-established principles and substitutes something that even the lawyers will have difficulty understanding.
Subsection b. of the proposed rule is the Commission's substitute for the full disclosure reouirement.
It falls far short of the VEPC0 standard. First, The rule limits the ability of the Cennission to take enforcerent action if a licensee fails to report significant information.
The rule only requires disclosure of information, which is not otherwise reouired by regulation, order, statute, or license condition, in those cases where the licensee has 1,dentified it as "having for the regulated activity a sionificant implication" for the public health and safety. This standard in effect allows the licensee to determine what infornation is relevant to the ccr. duct of agercy business It is unusual, to say the least, for an_ agency to leave up to the regulateo entity the detennination of what information is material for curposes of deciding whether to take enforcement action. The Cornission dces not explain what benefit this additional elenent provides.
In fact, it will add to the
a 4
difficulty in taking enforcement action because it requires proof of a new element, the fact of identification by the licensee.1 floreover, the rule includes no provision for enforcement action if the licensee should have identified information as being significant and did not.
A licensee only violates subsection b. if it actually identifies irformation and fails to report it.
If the licensee fails to identify significant information, the Comission can take no enforcement action based on this rule.
The Commission states that it intends to fall back on its general authority to revoke, suspend or modify licenses in those cases where there is a question about the reasonableness of the licensee's failure to identify information as being significant:
...an order night be appropriate where the action of the licensee in not reccgnizing the significance of the information and failing to report it, together with the relevant facts, raises serious cuestions about either its competence, i.e., its ability to evaluate informaticr., or its trustworthiness, i.e., its failure.to consider potentially significant information for evaluation.
Thus, the rule provides that a licensee can be penalizec uncer the rule only for failure to report information it has identified as significant.
- Yet, according to the Commission, the licensee can be penalized under the IThe Comission seems to recognize that there may be some difficulty in actually establishing that a licensee has identified information as significant because the Commission sets out in the statement of considerations a few examples of actions which nay be indicative of identification.
,-a
5 Comission's general regulatory authority for failure to identify informatio as being significant.
However, the Comission fails to explain what standards will be used in determining whether to take enforcement action for a failure to identify. There certainly are no standards in the rule.
This seems to be a particularly clumsy way of regulating the reporting of significant infomation. A more logical approach would be to set out a clear standard governing what infomation the Comissien thinks should be reported and to clearly explain when licensees will be subject to enforcement action for failure to report such information.
It would be easier for the licensees to understand and would not require them to go beyond the rule to understand w they might be penalized for failure to identify information.
A third problem with the proposed rule is that the Ccmission has raised the threshhold for what informatien has to be reported.
Urder VEPC0 the full disclosure standard requires that a licensee report any infomation which has the capability to influence a reasonable agency expert.
The Commission has substituted for that standard a requirement that licensees report information "having for the regulated activity significant implicaticns for the public health and safety and the comon defense and security." What that phrase means is anybody's guess. The Conmission makes no attempt to exp?ain what it means, and it certainly has no accepted legas definition as does the tem "rnaterial" which is used in the Comission's present standard.
Once agair the Commission fails to add clarity. Rather, this phrase will cnly provide fertile ground for litigation.
The only thing that is clear about this phrase is that it sets a higher threshhold for reporting than that recuired under the present full disclosure
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p A
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requirement. Obviously by inserting the term "significant" into the rule the Comission meant to require something less than that all naterial infcrmation be reported. The Comission fails to explain why such a change is nuessary, what benefit will accrue from the change, or how the change will help the Comission to ensure that it is aware cf all relevant information when it carries out its duty to protect the public health and safety.
-The Commission's rule thus fails not only to require full disclosure of material safety information, but it fails to provide clear guidance. The law on material false statements was well settled and worked effectively for ten years. The Commission has substituted for that long-settled law a rule which makes requirements less clear, which establishes new standards that make little sense, which will only make it more difficult to take enforcement
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action, and which will surely lead to much litigation. The benefits of this rule are, on the other hand, difficult to discern. The rule certainly will not encourage full disclosure, ard it does nothing to clari'y Comission requirements.
In its effort to ensure that reporting violations will no longer be labelled material false statements, the Comission has diminishec the NPC's ability to obtain the information it needs to discharge its safety mission and to deal effectively with licensees who fail to provide the agency with needed information.
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