ML20217A882
| ML20217A882 | |
| Person / Time | |
|---|---|
| Issue date: | 01/08/1990 |
| From: | Shelton B NRC |
| To: | Meyer D NRC OFFICE OF ADMINISTRATION (ADM) |
| Shared Package | |
| ML20217A873 | List: |
| References | |
| FRN-54FR30049, RULE-PR-150, RULE-PR-30, RULE-PR-40, RULE-PR-50, RULE-PR-60, RULE-PR-61, RULE-PR-70, RULE-PR-72 AD21-2-61, NUDOCS 9011300186 | |
| Download: ML20217A882 (18) | |
Text
{{#Wiki_filter:. _ . _ . - _ _ - _ _ _ _ - - . . . . - - . . - - - - . _ . . - - -- AD21-2 (Public) (, I s [/?,', m
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g NUCLEAR REGULATORY COMMISSION
..... .n. .
;; ,a WASHINGTON D.C.20666
*g. .... / JAN 8 1990 FEMORANDUM FOR: David L. Meyer, Chief Regulatory Publications Branch Division of Freedom of Information and Publications Services Office of Administration FROM: Brenda Jo. Shelton, Chief Information and Records Management Branch Division of Information Support Services Office of b; formation Resources Management
SUBJECT:
RE0 VEST FOR COMMENT / CONCURRENCE ON THE FINAL RULE,-10 CFR PARTS 30, 40, 50, 60, 70, 72 AND 150, PRESERVING THE FREE . FLOW OF INFORMATI0fl TO THE COMMISSION l In response to your subject memorandum, the Information and Records Management Branch (IRMB) provides the following: l The Paperwork Reduction Act statement is correct for the subject rule. ; X The Paperwork Reduction Act statement should be changed to statement number ? of the " Revised Paperwork Reduction Act Statements for
. Specific Tituations."
Do not release the Federal Register Notice for publication until further notice. X The Federal Register Notice can be released for publication. Enclosed is a copy of the IRMB memorandum to the program office addressing our concerns with the subject rule. A copy of the IRMB memorandum to the program office addressing our concerns with the subject rule will be forwarded at a later date. o l X An IRMB memorandum to the program office is not required. . l A
, Chief
, enda o. l Infomation and Records Management Branch l Division of Information Support Services Office of Information Resources Management
Enclosure:
As stated cc: S. Treby, OGC R.' Smith, OGC 9011300186 901120 PDR PR
. .g .
PAPERWORK REDUCTION ACT STATEMENTS REQUIRED FOR SPECIFIC SITUATIONS
- 1. No information collection requirements.
The accompanying Commission Paper should contain a statement similar to that in the rule. Proposed Rule Final Rule PAPERWORK REDUC 110N ACT STATEMENT PAPERWORK REDUCTION ACT STATEMENT This proposed rule contains no This final rule contains no information coll 1ction requirements and information collection requirements therefore is not subject to the and therefore is not subject to the requirements of the Paperwork requirements of the Paperwork Reduction Reduction Act of 1980 (44 U.S.C. 3501 et Act of 1980 (44 U.S.C. 3501 et seq. ), seq.).
- 2. No amendments to existing requirements.
The accompanying Commission Paper should contain a statement similar to that in the rule. Proposed Rule Final Rule PAPERWORK REDUCTION ACT STATEMENT PAPERWORK REDUCTION ACT STATEMENT This proposed rule does not contain a new This final rule does not contain a new or or amended information collection amended information collection requirement requirement subject to the Paperwork subject to the Paperwork Reduction Act of Reduction Act of 1980 (44 U.S.C. 3501 1980 (44 U.S.C. 3501 et seq.). et seq.). Existing requirements Existing requirements were approved by the , were approved by the Office of Office of Management and Budget approval Management and Budget approval number numbee 3150- 0 017 ) 3 iso-cogo 1 3150- - S is o - b til j 3 ISO-otrl 3 tse- coo 9 #_ 3150- o13 0, and 3 is o) 1)o3 9, , l. L l 1 I v
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- , AD21-2 (Public) //'
o o . , U.S. DEPARTMENT OF LABOR SECRETARY oF LA9oR WASHINGTON, D.C. DATE! March 23, 1989
- CASE NOS. 89-ERA-9 and 89-ERA-10 IN THE MATTER OF
, JOHN M. FUCHKO AND GARY A. YUNKER, COMPLAINANTS, v.
4 GEORGIA POWER CO., i RESPONDENTS. BEFORE: THE SECRETARY OF LABOR i I ORDER TO SUBMIT SETTLEMENT AGREEMENT i Administrative Law Judge (ALJ) Daniel A. - Sarno submitted a j i (recommended) Order Granting Stipulation of Dismissal with Prejudice to me on February 2, 1989, in this case arising under the employee protection provision of the Energy Reorganization l Act of 1974, asiamended (ERA), 42 U.S.C. .$ 5851 (1982). The AL3's order statesLthat the parties filed a stipulation of Dismissal with Prejudice which was based on "a full settlement" 4 of these matters. The ALJ granted the motion for. dismissal under l l 29 C.F.R. 5 18.9(c)(2) (1988). l
;io copy of the settlement agreement is in the record, and it 4
appears that the agreement was'not submitted to or reviewed by the ALJ. In whistleblower cases under the ERA which are settled, it is error for an ALJ to dismiss a case without reviewing the
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2. settlement and making a recommendation of whether the settlement
'is fair, adequate and reasonable. 42 U.S.C.- $ 5851(b) (2) (A) ;
29 C.F.R. I 24.6(a). The Secretary has held that such a case i i - cannot be dismissed unless the Secretary finds that the settlement'is fair, adequate and reasonable. F Macktal v. Brown !
& Root. Inc2, Case No. 86-ERA-23, Order to Submit Settlement .!
Agreement issued May 11, 1987, slip op. at 2; Johnson v. Transco Products, Case No. 85-ERA-7, issued August 8, 1985, slip op, at a 1; Chan Van Vo v. Carolina Power and Light Co., Case No. 85-ERA- 1 L 3, issued April 12, 1985, slip op. at 1. Although it is not I necessary that the settlement agreesent be part of the final l order, as the Secretary explained in Macktal v. Brown & Root, : c
"[w)here a settlement is not fair and equitable to a complainant, =
I cannot approve it for to do.so would be an abdication of the responsibility imposed upon me by' Congress to effectuate the purposes'of section 5851, which is to encourage the reporting of
. safety violations by prohibiting economic retaliation against- q employees reporting such violatins [ sic)."~ Slip op. at 2. ;
In the interest of judicial economy, rather than remand these matters to the ALJ to' review the settlement and submit a new recommende'd decision, the parties are ordered to submit a copy of the settlement agreement to me for review. If all the-r V Section- 5851(b) (2) ( A) of the ERA provides in partinent part that."the Secretary shall, unless the: proceeding on the complaint '
; is terminated by the Secretary on the basis of a settlement entered into-by the Secretary . . . issue an order sither providing the relief prescribed by subparagraph (B) or denying >
(emphasis added).
- ~ the complaint."
9
i.
. ;. .l ,
(1, f :.' { 3 parties, including the complainants individually, have not signed ; the settlement agreement itself, the parties shall submit a certification or stipulation, signed by all the parties to the , i agreement, including the complainants individually, demonstrating their informed consent to the agreement. The agreement should be submitted within thirty days of receipt of this order. SO ORDERED. SecrepaYy of Labor Washington,-D.C. =, I
'T 1
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, l
., I CERTIFICATE OF SERVICE ,
1 Case Name: John M. Puchko and Gary A. Yunker v. Georaia Power G2A, , Case Nos. - 89-ERA-9 and 89-ERA-10 i Document : Order to Submit Settlement Agreement A copy of the above-referenced document was sent to the following persons on 2 . W SA.D D CERTIFIED MAIL Sandra Michaels, Esq. First Federal Bldg. Suite 1720 40 Marietta Street
. Atlanta, GA 30303 Iaurie Fowler, Esq.
Route 2,-Box 186 Alto, GA 30510 Jesse - P. Schaudies, Jr. , ' Esq. TROUTMAN, SANDERS, BLOCKERMAN
& ASHMORE Candler Bldg., Suite 1400 127 ' Peachtree ' St. , N.E.
Atlanta,-GA' 30043-7101
- John M. Fuchko 4142 Lynette Court '
Kennesaw, GA 30144 7 Gary A. Yunker 910 Pointe Circle Woodstock, VA 30188
- f. <
BEGULAR MAIL .,
' Monica Gallagher Associate Solicitor
'- U.S. Department' of Labor
, Room N-2716
', 200 Constitution Ave., N.W. Washington, DC 20210 s.
.]
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2 4 Paula V. Salth-Administrator- - U.S. Department of LaborE noon S-3502 -
~200-Constitution Ave., N.W.
Washington', DC 20210 , Joseph-H.-Allen , Acting Area Director- ': Wage-and Hocr Divsion' t U.S. Department of Labor /ESA 202 Citizens-Trust Bldg. Atlanta, GA 30303 Richard Goddard, Esq. Region II-Counsel ' . Suelear Regulatory Commission-101 Marietta'St., N.W., Suite 290 Atlanta, GA;30323 Assistant-General: Counsel-for Enforcement .
. Nuclear Regulatory Commission Washington, DC 20555 d Director, Office of Enforcement Nuclear Regulatory Commission- ,'
Washington, DC 20555 i Bruno-Yryc .
. Enforcement Coordinator
' Nuclear Regulatory-Commission 101 Marietta St. , ' N.W. ,, Suite 290 .
Atlanta, GA 30323
' Hon. Nahua Litt Chief Administrative: Law Judge
,0f fice of Administrative Law Judges x
-1111 20th-Street, N.W., Suite'700 ,
- Washington, DC 20036 1
- Hon. John M. LVittone .
- Deputy. Chief Administrative Law Judge Office of' Administrative Law' Judges Suite!700 i 1111-20th Street, N.'W; '
- 1 Washington, DC~20036 Hon. Daniel' A. Sarno Of fice of { Administrative Law Judges 55 West Queens Way, Suite 201 Hampton, VA'23669
p 4 !
- AD21-2 (Public)
'U S. DEPARTMENT OF LADOR SECRETARY or LABOR WASHINGTON D C.
DATE: July 18, 1989 CASE No. 87-ERA-38 1 IN Tile MATTER OF l LORENZO MARIO POLIZZI, COMPIAIN ANT, 4 v.
. GIBBS fr llI LL, INC.,
RESPONDENT. , BEFORE: Tile SECRETARY OF LABOR j ORDER REJECTING IN PART AND APPROVING IN PART SETTLEMENT SUBMITTED BY Tile PAPTIES AND DISMISSING CASE OniJuly 13, 1988, the Administrative Law Judge (ALJ) in this case arising under the employee protection provision of the i Energy' Reorganization-Act of 1974, as amended (ERA), 42 U.S.C. 5 5851 (1982), issued'a Recommended Decision and Order (R.D. and 0.) dismissing this matter with. prejudice on the grounds that-the -i l i parties had resolved the issues.betwe'en them. The parties had made La . joint motion to the AIJ requesting the entry of an order-ofLdismissal on the grounds that the parties had entered into a ; settlement agreement. The record submitted to tho' Secretary with the A1J's h.O. and O. did not include a copy of the settlement agreement. Accordingly, on October 3,'1988, the Secretary issued an Order to Submit Settlement Agreement ordering the parties to' submit a copy I i
I
- C'" o-4 2
of.tho settlement agreement for review by the Secretary. On November 3', 1988, the parties submitted a copy of the settlement
. agreement to the Secretary.
The ERA requires the Secretary to issue an order resolving the case "unless the proceeding on the complaint is terminated by the Secretary on the basis of a settlement entered into by the secretary and the person alleged to have committed such violation 1
" 42 U.S.C. 5 5851(b) (2) ( A) . The Secretary has hold a number of times in ERA cases that the caso cannot be dismissed on the basis of a settlement "unless the Secretary finds that the settlement is fair, adequato and reasonable." Fuchko and Yu.nkgr-
- v. Georgia Power _ Co. , Case Nos. 89-ERA-9, 10, Secretary's Order to Submit Settlement Agreement issued March 23, 1989, at 2, and
. [' '
' cases cited therein. Furthermore, the Secretary held that "it is error- for the ALJ to dismiss a case without reviewing the settlement-and making a recommendation of whether the settlement-is fair, adequate and reasonable." .JA. at 1-2.
.The Department.of Labor does not simply provide a forum for private parties to'11tigato their private employment discrima-tion,sults..I' Protected whistleblowing under the ERA may expose
-i 1/, I. note that in ordinary lawsuits brought by.ono-privato party
'against another privato party, where the rights of other persons will not be affected, "sottlement of the dispute is solely in the hands of.the parties." !)nited _ Staten v. City _alliinni, . 614 F.2d
" 1322', 1330 (5th Cir. 1980), a f f ' d in pa.rt and rey _e_rgad_1ILnart__.QD rehearing _on bang, 664.F.2d 435 -(1981). Thus, under . Fed. R. Civ.
. P. 41(a) (1) (ii) , a stipulation signed by all partics who-have appeared in. the court action -is ef fective automatically, without Inc.,-747 judicial involvement. Gardiner v n A H . _ Roh,l.As_C_om F.2d 1180, 1189 (8th Cir. 1984). The trial court judge must
"' stand () indifferent,'" and not interfere with the parties'
e.,- *% 3 not just private harms, but health and safety hazards to the public. The Secretary represents the public interest in keeping _ channels of information open by assuring that settlements adequately protect whistleblowers. p_[1, E1I91DIA Electric and Power Co., 19 FERC 1 61,333 (Federal Energy Regulatory Commission 1982) ("[B]efore approving a settlement, regardless of whether it is contested or enjoys the unanimous support of the parties, the Commission is obliged to make an independent determination that the settlement _ is just and reasonable and in the public interest.") The settlement agreement in this case has been carefully reviewed. With the exception of two provisions, I find it fair,
. adequate and reasonable.
p, Paragraph 7 of the Settlement Agreement provides: _Polizzi agrees.that he will not voluntarily cooperate with or testify on behalf of any entity or individual who has or may file charges of discrimination or wrongful employment practices against Gibbs & Hill or-TUGCO, or their respective parents, affiliates, subsidiaries, successors or assigns, under the Energy Reorganization Act, the Atomic Energy Act of 1954 as amended, or , any other federal or state law, rule, I regulation or theory, nor will he voluntarily testify in or otherwise participate in any , proceeding or investigation involving the l Comanche Peak Steam Electric Station, before ! any state or federal court or administrative agency, including,.but not l'imited to,
.l footnote 1 (cont'd) 1
" unconditional right" to a dismissal by stipulation. Id. at 1189-1190 (citation omitted). See also InDus Films, Inc. v.
" Kill _qr, 801-F.2d 578, 582, 585 (2d Cir. 1986) ; gity_of Miami, 614 l F.2d at 1332.
+
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- 8e 4
licensing or safety proceedings or investigations before the Nuclear Regulatory Commission and/or regulatory or rate proceedings or investigations before the Public; Utility Commission of the State of . Texas, except as required by lawful subpoena; ' provided, however, that nothing in the foregoing paragraph shall in any_ manner be , interpreted-to prevent Polizzi from informing the Nuclear Regulatory Commic91on of any and 4 all safety concerns he may have relating to the Comache Peak Steam Electric Station. This' provision prohibits Complainant, among other things, from providing information to, or assisting or cooperating with, the Department: of Labor in investigations of complaints against Respondent, the Texas Utilities Generating Company, or any related company under the ERA or any other environmental , whistleblower protection statute. 29 C.F.R. $ 24.1 (1988). m, .
" ,. s - Paragraph 7 also would prohibit complainant from providing_
information or assisting or cooperating with the Department of -; Labor or any- other federal or ' state agency in the investigation-or prosecution of: any charge of discrimination or wrongful employm'ont- practices , in violation of any federal or state law,
.inale,' or regulation. This could include, = for example, the1 Fair y
up Labor = Standards Act, the occupational Safety _ and Health Act, Executive Order No. 11,246, Section 503 of the Rehabilitation Act of 1973, 'and Title VII of the Civil Rights Act of 1964. -This
- provision also: prohibits Complainant from voluntarily testifying i Oh . or otherwice participating in. any proceeding- or. investigation
- involving the Comanche Peak Steam Electric Station, including ]
Nuclear Regulatory Commission licensing or safety proceedings or .
a .. 5 investigations, .and state regulatory or rate proceedings or investigations. This prohibition could include investigation or enforcement proceedings by the United States Environmental i protection Agency. The only exception to these restrictions , would be where Complainant is under lawful subpoena. On May 4, 1989, complainant's counsel provided the Department's Of fice of Administrative Appeals a copy of a lett er to him f rom Respondent's counsel dated May 3, 1989, by which Respondent " waives now and forever any rights it may have to onforce any restrictions that may be construed to be imposed upon (Complainant) under paragraph 7 of the settlement agree-ment . . . . (Complainant) may freely go to the Nuclear Regulatory Commission at any time without fear of any. form of h retribution f rom (Respondent) ." Although the first sentence of this letter appears to nullify paragraph 7 in its entirety, the second sentence could be interpreted as limiting Respondent's waiver to the restriction on Complainant's right to go to the
,NRC. For that~ reason, I have fully reviewed paragraph 7~, as well as-all other provisions of the settlement.
Paragraph 7 of the Settlement Agreement significantly-restricts access by the Department of Labor, as well as other agencies, to information complainant may be abic to provide - relevant to the administration and enforcement of the ERA and many other laws. Its effect, to a largo degree, would be to " dry up" channels of communication which are essential for government ! agencies to carry out their responsibilities. ELEB v. Scrivener, 1 i
i 6 405 U.S. 117, 122 (1972). As such, I find it against public policy. U In EEOC v. Cosaair. Inc., 821 F.2d 1085 (5th Cir. 1987), the ; court held that waiver of the right to file a charge with EEOC was void as against public policy. The court distinguished between waiver of the right to file a charge and waiver of the right to recover personally on a cause of action. The court explained: Allowing the filing of charges to be ' obstructed by enforcing a waiver of the right to file a charge could impede EEOC enforce-ment of the civil rights laws. . . . A charge not only informs the EEOC of -discrimi-nation against1the employee who files the charge . . . but also may identify other unlawful company actions. When the EEOC acts on thisiinformation, "aloeit at the behest.of c 5, and for the benefit of specific individuals, it also acts to vindicate the public interest in preventing employment discrimination."
. . . We hold that an employer and an employee cannot agree to deny to EEOC the information it needs to advance the public interest.
Following the Supreme
- 821 F.2d at 1090 (citations omitted..)
'U A settlement is a contract, and its construction and United enforcement are governed by principles of contract law.
Stjitos ' v.__ITT ContiD9.Dt1AL Baking _QL., 420 U.S. 223, 238 (1975); Sphyartl y. Florida _DL _ol Regents, 807 F.2d 901, 905 (lith Cir. _ 1987); Orr v. Brown & Root. Inc., Case No. 85-ERA-6, Secretary's Decision and Order issued-October 2,.1985, at 2. The doctrine that a promise or term- of an agreement is .unenforceabic if against public policy encompasses more than illegality; it includes promises which are injurious to the public interest. Ehndip-v. Boq1, 685 F.2d 824, " Contracts 833, n.15contrary (3d Cir.1982) , cert. to public dADlRd 459 U.S. 970 (1982).
. policy, that is those which tend to be injurious to the public or against the public good, are illegal and void, even though actual Contracts f 211, injury does not result therefrom." 17 C.J.S.
- p. 1013 (1963).
I
-==------mm-.- - , , , , ,
- 7. ?
-7 Court's guidelines that "(a) promise is unenforceable if the interest. in its enforcement is outweighed by a public policy ha rmed' by enforcement of the agreement," -Town of Newton v.
Rumery, 4 80 U. S. 386, 392 (1987), the court in EEOC v. Cosmair, 2 JJuaz, held that a " waiver of a right.to file a charge is void as t against public policy. 821 F.2d at 1090. The restriction on access by government agencies to complainant's information here is, if anything, greater than in L'FAC_L Cosmair_JAQ2, and'I-find that it is unenforceable as against public policy. In addition, the settlement appears to encompass the settlement of matters arising .under various laws, only one of which is the' ERA. As stated in Poulos v. Ambassador Fuel Oil
. Co., Inc._, Case No. 86-CAA-1, Secretary's Order,- Issued 1
November 2, 1987, slip op. at 2: [The Secretary's) authority over settlement agreements is limited to such statutes as are within (the Secretary's) jurisdiction and is
~
defined by the applicable statutes. Egg
. Aurich v. Consolidated Edison Company of _Hgy 1prk, Inq1, Case No. CAA-2, Secretary's Order Approving Settlement,. issued July- 29, 1987, Chage v. Bunconbe CountL N.C. , Case No. 85-
~
SWD-4, Secretary's Decision and Order on i Romand, issued November 3, 1986. I_have, therefore, limited my review of' the agreement to-determining whether the terms thereof are a fair, adequate and I
)
reasonable settlement of Complainant's allegation that Respondent violated the ERA. Although~I have found that one provision of the Settlement I Agreement, paragraph 7, is-unenforceable as against public l l l l l
4 i 8 i policy, the remainder of the agreement may be enforceable when !
" performance as to which the agreement is unenforceable is not an essential part of the agreed exchange." Ef&C v. Cosmair. Inc., j 821 F.2d at 1091 (quoting the Restatement (Second) of Contracts, 5 184(1) (1981).) Ege also Nichols v. Anderson, 837 F.2d 1372,
= 1375 (5th Cir. 1988) ("(I)f less than all of a contract violates public policy, the rest of the contract may be enforced unless the unenforceable term is an essential part of the contract.".) Thus, in Ecfal.1 v. United __S_taiqs Postal Service, 839 F.2d 664 (Fed. Cir. 1988), an employee had settled an action challenging his removal by agreeing that, upon reinstatomont for a one year probationary period,.he would not appeal any disciplinary action
', taken against-him and also waived his right to file a charge with EEOC. The court held that "even if (the employee's) attempted
- waiver of his right to file EEOC-charges is void, that would not af fect. the validity of other portions of the agreement." 839 F.-2d-664, 666 at *. Here, the provisions of paragraph 7 of.the Settlement Agreement appear to be_ collateral to the contral dispute which the agrooment purported to settle, alleged retaliation by Respondent against Complainant for protected activities, in violation of the- ERA. I have attached primary significance in
. reaching this conclusion to the f act that Respondent has expressly waived any right to enforce the restrictions in paragraph 7. In addition, most, if not all, of the . restrictions 1
i
. ,,, y ..
9 placed on Complainant by paragraph 7' would apply in matters only renotely related, if at all, to their dispute under the ERA. I_also' note that paragraph 2 of the agreement could be construed as a waiver by Complainant of any causes of action he may have which arise in the future. As th'e Secretary has held in , 85-prior cases, gog Johnson v. Transco Products. _ Inc. , Case No. - ERA-7, Secretary's Order Approving Settlement issued August 8,
- 1985, such.a provision must be interpreted as limited to the right to sue in the future on claims o causes of action arising out of facts or any set of f acts occurring _ before the date of the i agreement. Seo_also 6.lexander v. Gardner-Denver Co., 415 U.S.
36, 51-52.(1974); Rocers v. Genetal Electric Co., 781 F.2d 452,. . j j.; , i 4 5 4 -(Sth' Cir. .198 6) .
- With the exception of paragraph 7, and with the limitations
' discussed above, I find the: terms of the agreement within the scope o'f my authority under the ERA to'be fair, adequate and
, t"c a sonable , and to that extent I approve it.
Accordingly, the complaint in t.11s case is DISMISSED. SO ORDERED.-
~d . . _ . t
_ Secret y of Labor Washington, D.C.
J., . ..
+ CERT 3.EICATE_0E_SERYlCE
. Case Name: In the M.011qr_gf_LorenAp_}farlo Pol i z z_i v. Gibj2R_ &
Rill, Inc. Case No. : 87-ERA-38 Dccument : Order Approving Settlement and Dismissing Case f i ALcopy of the above-referenced document was sent to the following persons on !O N . bfAnj uW QERTJylED MAIL Lorenzo M. Polizzi-100 Spring Street
.Motuchen, NJ 08840 Elizabeth St. Clair, Esq.
'Rabinowitz,. Boudin,. Standard, Krinsky &-Liberman, P.C.
--740 Broadway at Astor Placo
'i
- New York, NY-10003-9518 Craig Kaplan, Esq.
Levinson, Kaplan E Mogulescu 220 Fifth Avenue New York,fNY 10001 James Puhala ( Dravo Corporationi one oliver Plaza- ' Pittsburgh, PA 15222 Eugono D. Ulterino, Esq. Nixon, Hargravo, Devans &
~Doyle P.O. Box 1051 Lincoln First Tower- ;
Rochester, NY 14603
' Michael G. Davies, Esq.
Nixon, liargrave, Devans & Doylo 30 Rockofoller Plaza
' Suite'3755
'New1 York, NY 10112 A
i is
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. =,=
2 REGiulAE_NAll' Phil McKeo Deputy Director for Comanche Peak Project - Office of Special Projects Nuclear. Regulatory Commission
' Washington, DC 20555
. Thomas Kolly Arca Director >
Wage and flour Division U.S. Department- of Labor /ESA 26 Federal Plaza, Room 2251 New York, NY 10278 Monica Gallagher Associato Solicitor _ office of the Solicitor U.S. Department 1 of Labor Room N-2716-200 Constitution Avenue, N.W. Washington, DC 20210 l[ Paula V.fsmith, Administrator l Wage and flour Division U.S. Department of Labor ' Room S-3502 200 Constitution Avenue, N.W. Washington, DC 20210 Hon. Nahum Litt-Chi'ef Administrative ~ 1aw Judge of ficeL of Administrativo Law Judges - 1111~20th-Street, N.W. Washington, DC 20036 Ilon. Michael H. -Schoenfeld Administrative ' Law Judge of fice of Administrative Law Judges
.1111 20th Street, N.W.
Washington, DC 20036 a
; Director 7
' Office of-Enforcement Nuclear Regulatory Commission
-Washington, DC 20555 Assistant General Counsel for Enforcement Nuclear Regulatory Commission Washington, DC 20555
f A021-2 (Public) f --~ve
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1 January 11, 1990 SECY-90-013 (Affirmation) For: The Commissioners From: William C. Pailer General Counsel
Subject:
FINAL RULE T0 PROHIBIT AGREEMENTS RELA 1ED TO ElIPLOYliENT Tl!AT WOULD RESTRICT THE FREE FL0nl 0F INFOR!,ATION TO THE C0f!!!ISS10!i purpost: To request appraval of final revisions to the Comission's regulations which would prohibit agreements related to k employment that would prohibit, restrict or discourage employees who have performeo or are performing work reloted to licensed activities from bringing safety information to the Comission.
Background:
In SECY-09-157, 0GC provided a detailed background of the events leading up to-the drafting of a' proposed rule on the free flow of information to the Comission. After Commission review and approval, the Commission, on July 18, 1989, published the proposed rule in the Federal Register (54 Fed. Reg.20049). The Commission has received 43 comments on
. the proposed rule. Of these comments, 36 opposed the proposed
. rule ana 7 favored the proposed rule subject to some moaltica-tions. Although no commenters were satisfied with the proposeo rule as drafted, virtually all comments voiced support for the goal of assuring safety infermation was brought to the Comission.
Subsequent to the Commission's appceval of the publication of the proposeo rule, two events occurred which have direct bearing on the form of the final rule. First, on July 18, 1989, the Secretary of Labor issued a decision in a case filed under Section 210 of the Energy Reorganization Act which addressed restrictive settlement agreements.. Ste Pollizi v. Gibbs & Hill. Inc., 87-ERA-38 (July 18, 1989).- In that decision, the Secretary of Labor found a restrictive clause in a settlement agreement unenforce-able because it had the effect of drying-up channels of communication which were essential for Government agencies to carry out their responsibilities. Specifically of significance
Contact:
Stuart A. Treby, 0GC x-216& h -
,; 3 7
for this rulemaking, the Secretdry found that Department of Labor Administrative Law Judges had a duty to revicw parties' settlement agreements before dismissing cases and that a restriction on voluntary appearance as a witness in an NRC proceeding was against public policy and, therefore, unenforce-able. Particularly notable is the fact that the Secretary declared the restrictive provision of the Poll 121 settlenent agreement unenforceable as against public policy, in spite of the fact that the provision in question explicitly stated that, other than ;ppearing voluntarily as a witness in en NRC pro-ceeding, Mr. Pollizi could bring all his safety concerns to the NRC. The second event of signiiicance to this rulemaking is that the Commission received the replies of various licensees to the Commission's April 27, 1989, letter to nuclear power plant licensees, their contractors, and major nuclear materials and fuel cycle facility-licensees concerning the existence of other settlement agreema.ts with restrictive clauses. Although some licensees were expanding the scope of their reviews and may identify additional agreements in the future, initially more
<then a. dozen egreements were identified that contained restric- .
< tive language or questionable language concerning providing j Linformation to the NRC. .The responses included not only agreements settling Section 210 complaints, but also other t agreements settling 71 aw suits in State and Federal Courts. 1 The attached Federal Register notice contains a summary of the i comments received and Comission responses to those coments.
While those comments were-inportant in deciding on the final 1 form of the rule, the above two events were significant in i drafting the mooifications,to the proposed rule. The modifi- 1 cations-to the' proposed rule are? discussed below.
.A. LThe requirement that licensees h6ve procedures to assure that contractors and subcontractors do not have improper agreements with their employees.
Comenters that exhibited the most concern for the rule's requirement that procedures be developed to monitor contractors- j and subcontractors were materials licensees, such as-hospitals, whose overall activiti.es-involve only a small percentage of' licenstid activities. Their concern was that, as written, the- : rule would require that they have procedures to oversee employee / employer agreements for hundreds of contractors and subcontractors that had nothing to do with their limited licensed activities. It is well established in Comission precedent that an appli-cent or licensee cannot avoid responsibility for ccmpliance
a' Y 'ei ' t j -
. )
,4 !
h i with the Atomic Energy Act or the Comission's regulations by delegation of performance of license related activities to. independent egents or contractors. (See Virginia Electric i and Power Com>any, (North Anna Power Station, Units 1 and 2) ALAB-324, 3 N RC 347 (April 15,1976); 111ircis Power Company, (ClintonPowerStation, Unit 1)LBP-81-61,14NRC1735 (December 16,1981)). In f act, the Comission has specifically noted the responsibility of licensees for the conduct of their contractors with respect to cases of harassment by contractors . of contractor employees. Metropolitan Edison Cornpany et. al., ! (ThreeNileIslandStation, Unit 1)LLI-85-2,21NRC282,329
, (February 25,.1085). Therefore, it is.not necessery for the Commission to specifically require licensees _to have procedures ,
for assuring _their contractors and subcontractors comply with the Comission's regulations. Enforcement actions can be, and have been, taken against licensees for the misconauct of their contractors and. subcontractors which results in violations of the - Comission's . regulations.. - The staff does not believe it was the Comission's intent in proposing the draft rule to create an unwieldy system where some licensees performing limited licensed activities wculd be
. required to establish a system to menitor the entployer/ employee relations of hundreds of contractors and subcontractors-who are 1 not involved in licensed activities. Accordingly','the final rule has been modified to directly prohibit agreements which -
prohibit,' restrict, or otherwise discourage .an employee f rom. r engaging > in protected activity. The final rule has not . retained the1 requirement that . licensees develop specific procedures to' 4 n assure compliance by' contractors or subcontrectors.- liowever, Lthe. Statement of Considerations for the final rule reemphasizes , the precedent noted above with respect to licensees' responsi- . '
. bilities for their contractors.and subcontractors and notes 4 that _the Comission will hold. licensees responsible for - ,
violations of NRC regulatory requirements-by contractors. and 'j subcontractors related to the activities which ere.the i iresponsibility'of _the 1.icensee undet the applicable statutes, ~l r regulations, orders, or licenses.. j l l ~ B.- The requirement.that licensees be . informed.'of-the filing of Section: 1 !'L 210 cases against contractors and.that licensees review proposeo q settlement agreements in!those cases. !
, A number of~commenters raised problems with the requirements in l; the proposed rule that contractors and subcontractors inforn licensees of each Section 210 complaint filed against the ,
I J contractor or subcontractor, and that the licensee or license l applicant have. prior review of Section 210 settlement agree-f: '- ments in those cases. Commenters generally felt that this-procedure was unnecessary and would nake it more difficult to l l\ l;
.f .,!
v settle cases. They believed that, given that it is generally l to the benefit of all parties to a dispute to settic the issues of concern short of full litigation of the issues, a rule which discouraged agreements would be' detrimental to all parties to a dispute. It is the staff's view that, as a result of the Secretary of
' Labor's decision in the Pollizi case, these requirements should
-be dropped. This recommendation results from two parts of the
.Pollizi decision. First, the Secretary in that case reiterated -
a decision in Funcko and Yunker v. Georgia Power Co. , 89-ERA-9, 10, (Secretary's Order to submit Settlement Agreement issued March 23,1989, at 2), that it was error for an Aoministrative Law sludge in a Department of Labor case-to dismiss a case without reviewing a-proposed settlement agreement. Polliz_i
. slip op, at 2. In addition, the Secretary founo that en agreement that restricted voluntary participation in NRC proceedings, even _though it specifically noted that Mr. F0111zi was not in any manner restricted from providing information to the Commission on safety concerns, was against public policy
-and would not be enforceable. Pollizi slip op, at 7. As a cresult of-these two findings it is evident that the Department of_ Labor will be giving-close scrutiny to these settlement
- agreements. Therefore, it does not appear that the administra-tive burden of having contractors report on, and licensees monitor, the filing-and settlement of Section 210 cases is necessary to achieve the purposes of the proposed rule. These
' provisions have been dropped from the final rule.
C. ' Application of. the rule to all: settlement agreements.
-Although a number of commenters believed that the rule was
, either unnecessary or should be restricted to Section-210
-agreements, OGC does not.believe.either of thesefpositions'is correct.- This conclusion results from the responses to the-staff's Apr11:27, 1989,~1etter to'various licensees, which inquired asito the existence of any additional agreements
.containing restrictive clauses. Those responses not only identified more than'a dozen agreements which contained-language that.could be interpreted as restricting the free flow
- of safety information to the Comission,: they'also included -
several settlement agreements outside of Section 210 proceed-
- r ings before the Department of Labor. . This indicates bothi that the current rules are not adequate to prevent these agreements n ,
from being executed, and that the scope of.the prohibition on
, such agreements ~ should be broader than just Section 210 settle .
ment agreements. 1
e
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9 Coordination: The Executive Director for Operations has reviewed this paper and concurs with it. i Recomendation: That the Commission:
- 1. Approve for publication in the Federal Register the tinal rule, attached to this paper, on Preserving the Free Flow of Information to the Comission.
- 2. Certify that these amendments will not have any significant economic impact on a substantial number of small entities. This certification is necessery in order to satisfy the requirements of the Regulatory Flexibility Act,-e U.S.C. 605(a).
- 3. Note:
- a. The flRC has determined that this final rule falls within the scope of the actions described in '
categorical exclusion 10 CFR 51.22(d). Therefore, neither an environmental impact statement nor an-environmental assessment has been prepared for this rule,
- b. As amended, the final rule does nnt contain are inforaation collection requirements that would be subject to the requirements of the Paperwork Reduction Act of 1980, 44 U.S.C. 3501, et, seq.
- c. The NRC has determined that the backfit rule, 10 CFR 50.109, _does not- apply to this final rule and, therefore, that a backfit aralysis is not required -
- for this final rule because these amendments do not l involve any provisions which would impose backfits as defined in 10 CFR 50.109(a)(1).
- d. In publishing the proposed rule, revisions.to Part 61 were inadvertently not-included. Fart 61 does contain, in $6 61.9, comparable employee protection provisions to those being modified in other Ports of
- the regulations. Accordingly, the final rule includes the appropriate revisions .to Part 61.
- e. The Senate Comittee on Environment and Public Works, the House Comittee on Interior anc Insular Affairs. - :
and the House Committee on Energy er.d Commerce will ' i be informed of the Commission's action concerning this final rule.
i
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9 , l
- f. The Chief Counsel for Advocacy of the Small Business !
. Administration will be informed of the certification 3 and reason for it as required by the ReOul6 tory .i Flexibility Act.
- g. Copies of the final rule will be distributed to affected licensees and other interested parties. _i i
1 a illiam C. Par er / General Counsel 'l
Attachment:
Federal Register tiotice containing Final Rule on Preserving the Free . Flow of Information to the Commission ! j
-Commissioners' comments should be' provided directly to the Office of.the-' Secretary by COB Friday, January 26, 1990,. 3 1 Commission Staff. Office comments, if aay, should be submitted 1
-to the Commissioners NLT Friday, Januar:r 19, 1990, with an
-information copy to the Office of the Se:retary. If the paper o
'is of such a nature;that it-requires-additional time for .i
' analytical review and : comment, the Commissioners and the iSecretariat:should.be apprised of when commants may be' expected.
This' paper is tentatively: scheduled for affirmation at an'Open- .j Meeting during the Week of-January 29,'1990. Please refer to the. appropriate' Weekly Commission Schedule,~when published, for. !
!a' specific-date1and time.
' DISTRIBUTION: d Commissioners -
1 OGC OIG
- LSS. q GPA U REGIONALMOFFICES EDO:
.ACRS ACNW
'ASLBP-ASLAP SECY
4.i - . .. 4 s . [7590-01] NUCLEAR REGULATORY COMMISS10l;
-10 CFR Parts 30, 40, 50, 60, 61, 70, 72 and 150 RIN: 3150-AD21 Preserving the Free Flow of Information to the Commission AGENCY: Nuclear Reguiatory Commission.
ACTION:' l Final Rule. -
. SUMitARY: The, Nuclear Regulatory Commission is revising its rules governing rthe conduct'ofsall-Commission licensees and license' applicants. -The final
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' t rulef prohibits the:impos1 tion of conditions in settlement agrecuents under nSection 210 of the Energy Reorganization Act, or in other agreements effecting s
employment, that would prohibit, restrict, or otherwise discourage any employeeLfrom.providing the Commission with inform 6 tion on potential . viola-. , R t , tionsEor other. hazardous. conditions. This rule is' necessary to' prohibit the y fuse of provisions which would inhibit the free flcu of'information to the he s Commission in; agreements' related to employment. 5 g
4.
- 2^-
EFFECTIVE.DATE: Insert date S0 oays after date of publication in the Federal Register. e FOR FURTHER li! FORMATION CONTACT: Stuart A. Treby, Assistant General Counsel,
.Rulemaking and Fuel Cycle Division, Office of the General Counsel, U.S.
Nuclear Regulatory Commission, Washington, DC 20555; Telephone (301) 492-1636. SUPPLEMENTARY INFORMATION:
Background
Section 210 of the Energy Reorganization Act of.1974, as amended, was s added as a new section to that Act in!1978'(Fub. L. 95-601). Section 210 ioff ers protection to employees of'a Commission. licensee, or of a contractor or La subcontractor of'a Commission licensee or applicant. The protection (dfforced is to those who have;been fired.or discriminatec' against as a result of.the fact that, among other things, they have-testified or given evidence on. s potential violations,.or brought suit under Section 210 of thel Energy Reorgan-i
, ization Act. Employees.who' have bee'n discriminated against for raising safety , or o her issues-h' ave the right to file complaints'with the' Department of Labor forithe' purpose of obtaining a remedy for the personal harra caused by the l discriminatic". Following the filing of a complaint,: the Department of Labor performs.an investigation. If either the employee or the employer is not l-4
t
;e
.j-satisfied with the outcome of the irvestigation, a hearino can be held before an Administrative Law Judge, with review by the Secretary of Labor. The Secretary of Labor can issue en order for the employee to be rehired, or otherwise compensated if the employee's case ir justified.
In many cases, the employee and the cmployer reach settlement of the issues raised in the Lepartment of Labor proceeding before completion of the formal process and a finding by the Secretary of Labor. In general the Commission supports settlements as they provide remedies to employees without the need for litigation. However, a recent case has brought to the Commission's attention the potential for settlement agreements negotiated
. under Section 210 to impose restrictions upon the freedom of enployees or former employees protected by Section 210 to testify or participate in NRC licensing and regulatory proceedings or to otherwise provide information on
- potential violations or other hazardous conditions'to the Commission or the .;
r NRC staff. -(See Texas Utilities Electric Co., (Comanche Peak Steam Electric StationUnits1and2),CLI-88-12,28NRC605(1988); Texas Utilities
~
4 Electric Co., . (Comanche Peak Steam Electric Station Units 1 and 2), CLI-89-06, NRC -(1989)). The Commission's follow-up to the above case has con-firmed that other instances of questionable restrictions do exist in a variety of- settlement agreements, not limited to Section 210 proceedings. The'Comnission has concluded that a'Sec, tion 210 settlement agreement, or any other agreement affecting employment, which restricts the treedom of an employee or former employee from freely and fully communicating with the
# 4 4
fluclear Regulatory Ccmmission about potential violations or other hazards falling within NRC's regulatory responsibility is unacceptable. These provisions may have a chilling effect on communications about nuclear safety - security, or other matters, and would restrict, impede, or frustrate full end 1 - candid disclosure to the Nuclear Regulatory Comission about matters of regu'iatory significance. Any such agreenent under which a person contracts to withhold safety significant informetion or testimony f rom the Nuclear Regulatory Comission could itself be a threat to safety and therefore jeopardize the execution of the Agency's overall statutory duties. And the same would be true of other information bearing on NRC's regulatory responsi-bilities, for example information regarding security or safeguards issues. Accordingly, on July 18,1989 (54 FR 30049), the Comission published a proposed rule amending its regulations to recuire licensees and license applicants to ensure that neither they, nor their contractors or subcontrac-tors, impose conditions in settlement agreements under Section 210 of the Energy; Reorganization Act, or in other agreements affecting employment, that - would prohibit, restrict, or otherwise discourage an employee from providing the Commission with information on potential violations or hazardous
-conditions.
4 The NRC has received 43 coments on the proposea rule from a variety of Comission licensees, private individuals, and inoustry organizations. A
'sumary of those comments and the Commission's responses to those comments follcws. Defore discussina those comments, however, two additicnal events 1 . --- i-
.... . c c
have occured which, along with the comments, have resulted in changes in the content of the final rule. First, on July 18, 1969, the Secretary at Let.or issued a decision in a case filed under Section 210 of the Energy Reorganization Act which addressed restrictive settlement agreements. S'.e Pollizi v. Gitbs & Hill, Inc. , 87-ERA-38(July 18,11989). In that decision, the Secretary of Labor fcund unenforceable a clause in a settlement agreement which had the effect of drying-up channels of conrunication which were essential for Government agencies to carry out their responsibilities. Specifically of significance for this rulemaking, the Secretary found that Department of Labor Administra-
.tive Law Judges had a duty to review parties' settlement agreements befnre cismissing cases and that a restriction on voluntary appearance as a witness
.1n'an NRC proceeding was against public policy and, therefore, unenforceable.
;, Particular1y' notable;is the fact.that the Secretary found the. restrictive
. provision ~of.the:Pollizi settlement agreement unenforceable in spite 'of the fact that~the provision in question explicitly stated that, other than appearing _ voluntarily as a witness in an NRC proceeding, Mr. Pollizi could ;
bring all his safety concerns to the NRC.
-) .
The second event of significance to this rulemaking is that the- t
- LCenmission has received the replies of various licensees to the Commission's
' April 27, 1989,- letter ,to nuclear power plant licensees, their controctors,. ,
and major nuclear naterials and fuel cycle facility licensees-concerning the existence of other settlement agreements with restrictive clauses. Although
p
. l some licensees were expanding the scope of their reviews and may identify
, additional agreements in the future, initially more than a dozen agreements were identified that contained either restrictive language or questionable language concerning the provision of information to the NRC. The responses included not only agreements settling Section 210 con. plaints, but also other agreements settling law suits in State and Federal Courts. As will be discussed in resperting to specific comments eno suggested changes, the above two events, in combination with the coments received by. the-Comission, have resulted in modifications to the proposed rule, whiit at the same time confirming the Comission's view that a specific rule concerning settlement agreements should be dopted. Summary if Public Coments Of the 43. comments received by the Commission on the proposed rule, no one indicated satisfaction with the-rule as written. Thirty-six comenters
-specifically opposed the rule for a variety of reasons. Seven conventers favorea the rule subject to certain modifications. It is noteworthy that virtually all commenters indicated their support, for the Commission's goal of assuring the free flow of information to the Comission. A sumary of comments with the Commission's responses appears below.
J f. ) : m ,7, l'. -The Proposed Rule As Dr6f ted is Much Too Broao in Scope. _, i Almost half the comenters coraplained that the scope of the rule was much too broad, rendering its implementation both unnecessary and impracticol. The two areas most frequently mentioned as being too broadly written were the rule's reference to " contractors and subcontractors" and the applicttion of the rule to "all settlement agreements." Each of those issues is indivicually addressed below. u
?.
a . Application of the rule to contractors and subcontractors. o J Commenters that exhibited the most ccncern for the application of the rule to co'ntractors and subcontractors were materials licensees, such as-hospitals,:whose overall activities involve only a small percentage of n . licensed activities. Given the extensive use of contractors in the conduct x=' l 'of licensed activities, a rule that applied only to' licensees, and not to their contractors or subcontractors, would be of little value. .Accordingiy, the rule prohibition is broadly worded to cover all persons.
, .A separate but related concern is that, as proposed, the rule would 3reguire that licensees have procedures to oversee employee / employer agreements 1
' for' hundreds of contractors and subcontractors that had nothing to do with th,eir-limited licensed activities. It is well established in Commissicn
. precedent that an applicant or licensee cannot avoid responsibility for compliance with the Atomic Energy Act or the Commission's regulations by i
,/
celtgetion of performance of license related aethities to indspendent agents Or contractors. (See Virginia Electric er.c Power Company, (North Anne Power Station, Units 1 and 2) ALAB-324, 3 NPC 347 (April 15, 1976); Illinois Power Company, (Clinton Power Station, Unit 1) LBP-81-61,14'llRC 170$ (December 16, 1981)). In ft.ct, the Counission has specifically noted the responsibility of licensees for the conduct of their contractors with respect to cases of harassment by contractors of contractor employees. EetropolitanEoicon Company ct. al. (Three itile Island Station, Unit 1) CL1-85 2, 21 i;RC 282, 3P9 (February 25,1985). f 6 Therefore, it is not necessary for the Commission to specificelly require licensees to have procedures for assuring that their contractors and subcontractors comply with the Conmission's regulations. Enforcenent actions can be, and have been, taken against licensees for the misconcuct of their contractors and subcontractors which results in violations of the Comission's regulations, including violation by contractors of enployee discrimination regulations. Thus, the Commission need not require that formal procedures be developed to monitor contractor and subcontractor activity in order for licensees to be responsible for their contractors' ano subcontrectors' ' actions. i l The Conunission did not intend to create on unwieldy system whici: would requita some licensees performing limited licensed activities to esteblish a system to monitor the uployer/ employee relations of huncreds of contractors end subcontractors who ore not directly involved in licensed activities. 4 l
l 9 Accordingly, the final rule has been redified to directly prchibit agreements which prohibit, restrict, or otherwise discourage an employee from orgaging in J protected activity as defined in the Commission's enployee protection regu- j l lations. Although the final rule requires that litersees notify contractors i and subcentractors of this regulation's restrictions, the final rule has not retained the requirement that licensees develop specific procedures to assure l complience by contractors or subcontractors, flowerr, the Commission reemphasizes the precedent noted above with respect to licensees' responsi-bilities for their contractors ano subcontructors. The Consnission will hold licensees responsible for violations of NRC regulatory requirements by
^
contractors and subcontractors performing work related to the activities whic'4 are the responsibility of the litersee under the applicable stotutes, rtgulations, orders, or licenses. The selection of means te ensure that viola ions do not occur, which could include development of written procedures, will be left to licensees. ,
- b. Application of the rule to all settlement agreements.
The second area in which conenenters were concerned with the scope of the proposed rule was in its application to all " agreements affecting the compensation, terms, conditions ano privileges of employment." A ni mber of commenters believe that the rule should be limited to settlement of complaints alleging violations of Section 210 of the Energy Reorganization Act. The Conunission finds no merit in this criticism of the i,roposed rule.
Cn April 27, 1989, the NRC staff recuested nutitar power plant licenstes and their contractors, and major nuclear materials and fuel cycle f acility licensees, to rev.iew all settlement agreements or other agreeDents rel6ted to compensation, terms, conditions, anc privileges of empic) ment to which they were a party for potentially improper restrictive clauses. Although several of the licensees had not fully completed their review of all such agreenents, initial responses to the Commissien's inquiry identifiec n. ore then a deren agreements that cont 61ned language that was either restrictive in nature or was at least questionable concerning the provision of information to the NRC. These agreements were not, in fact, limited to Section 210 conplaints. They contained several settlements of cases filed on a variety of grounds before State and Federal Courts. The Commission has ccncluded that these agreements ocequately temonstrate the potentiel for impeding the fice of informution to the Ccamission through avenues other than Section 210 agreements. The Commission is, therefore, maintaining in the final rule the application of its prohibitions to 611 agreements affecting the compensation, terms, concitions, and privileges of employment.
- 2. The Rule Is Unnecessary Because It is Redundant.
Commenters hovancing this position generally cited the already existing restrictions in the Ccruission's regulations concerning Section 210 cf the Energy _ Reorganization Act. These include the requirement in 10 CFR part 19 that a " Form 3" be posted at all work sites informing en.ployees of their right e
t to bring sefety concerns to the hRC and the recyirement in 10 CFR part 21 creating an obligation on directors tna responsible officers of licensees and vendors to report defects to the NRC. The comn. enters believe that it would be redundant to edd a restriction on settlement agreements to the reguleticns. The courts have not explicitly eddressed the issue of whether Section 210 of the Energy Reorganization Act would prohibit restrictive settlement agreements ano the Commission's own regulations do not spec 111ct11y address the issue either. In the Pollizi case the Secretary of Labor did not specif ica11,5 find that the restrictive provisions in the settlement agreen.ents violated Section 210. Rather, the Secretary indicated that the agreement's provisions were invelid because the provision was acainst public policy and was, therefore, unenforceable. See Polliri v. Gibbs & Hill. Inc._, 87-EkA-38, SlipOpinionat7(July 18,1989). In addition, based on the numbar of agreements already identified which contain questionable provisions, it would not appear that current regulations have prevented potentially improper cgreements from being executed. Rather than relying on the judgment of e variety of individuals ettempting to determine which clauses might violate public policy, the Conunission believes it is prudent to specifically prohibit by regulation all settlement agreen,ents or other agreements affecting the compensation, terms, conditions and privileges of employment from restricting employees from bringing safety concerns to the attentien of the NRC.
[. .. 1 l I 12
- 3. Corsents Concerning The Reporting And l'enitoring Aspects Of The proposec Rule.
1 A number of commenters reiseo problems with the requirements in the proposed rule that contractors and subcontracters inform licensees of each Section 210 complair>t filed against the contractor or subcontractor, and that the licensee or license applicant have prior review of Section 210 settlerent agreer.ents. Commenters generally felt that this procedure was unnecessary oric would make it mcre difficult to settle cases. Given that settlerents are g generally encouraged, actions making it raore difficult to settle cases would be detrimental to all parties involved in these disputes. The Commission has determined that, eis a result of the Secretary of Labors' decision in the Pollizi case, these no,uirements should be dropped. The reason for the Commission dropping this aspect of the proposed rule primarily results from two_ parts of the Po11121 decision. First, the t Secretary in that case reiterated a decision in Fune,ko_ and Yunker v. Georgia Power Co., 89-ERA-9,10. (Secretary's Order to Submit Settlement Agreement issued March 23, 1989, at ?), that it was error for an Aoministrative Law Judge in a Department of Labor case to dismiss a case without reviewing a [ proposed settle: ment agreement. Pollizi slip op, at 2. In addition, the Secretary found that an agreement' that restricted voluntary participt. tion in flRC proceedings, even though it specifically noted that l'r. pollizi was not in eny manner restricted f rom providing information to the Commission on safety , concerns.- was against public policy and would not be enforceable. As a result 6
i of +hese two findings it is, evident thot the Department of Laber will be j giving close scrutiny to Section E10 settlemert agreements. Licensees will te ; held responsible for contractor violations of the rule. All settlement agret-ments by contractors will be subject to the restrictiers the Cont.ission is adopting too6y. Licensees may use a variety of methods, such as notification to litersees of all contractor settlement agreements, piacing requirements it. l contracts with individual contrettors to prchibit restrictive agreecents, or other procedural mechanisms to assure that their contractors comply with this requirement. The Conmission is not specifying the method or methuct that s licensees should use. The Consission emphasites, however, that licensees will be held responsible for violations assuciated with their licensed activities, whether er not they are specifically aware of a contractcr's f ailure to comply with regulatory requiremeritt. The Commission does not believe that the rule needs to prescribe procedures whereby contractors will report on, and licensees will monitor, _the filing and settlement of Section 210 cases. Although the prim 6ry motive for these modifications to the proposeo rule 4 results from the Follizi decision,-a number of commenters identified additier.a1 problems created by the propnsed requir&rient which supports the mooltications to the proposed rule. The Connission is including below a brief sumary of those cements, n
- 6. The administrative burden to monitor hundreds of contractors and subcontractors is onerous.
-. l i
- b. Small contra.ctors may cease nuclear work rather than taking on the j additional administrative burden.
The Connission has removed the most burdensome administrative aspects of the proposed rule. Although the Commission does not necesserily agree with , some commenters views of the magnituce and affect of the burden that woulc have been imposee under the preposed rule, the Lo,11121 decision unottrnines the need to impose a raonitoring burden on licerisees and license applicants, or a repnrting requirement on contractors end subcontractors, with respect te ; Section 210 settlement agreements. However, the Commission reminds licensees and license applicants that the final rule will prohibit all agreernents which restrict the bringing of safety or other concerns to the NRC. They are still responsible for assuring that regulated activity is performeo in accordance with Commission regulatory requirements. The hiring of contractors or subcontractors to perform work will no,t relieve licensees or license , applicants of that burden. >
- c. The NRC is exceeding its authority by forcing licensees to become involved in third party contiacts, d.- The requirenent that licensees and license applicants become involved !
in third party contracts will result in licensees fully litigating claims rather then settling claims. This will be detrimental to the employee. 4
e
.=
- e. It is inappropriate to require licensees to intruce into contractor 4
employee negotiations. The Commission does not agree that it is beyond its i.hthority or it is improper to require licensees to be responsible for the actions of third parties, which they directly or indirectly cause to be involved it' iicensed activity. As noted previcusly, it is well established the.t licensees or.d license applicants cannot celegate away their responsibility to comply with Commission requirements for performance of licensed activititk. The Comis-sion does not believe that the final rule intrudes into third party activities such that it will significantly, if at all, af fect the ability of tr:ployees to obtain settlements in Section 210 or sioilar cases. > o
- f. Contractors and subcontractort; who are also licensees should not be covered by the rule's monitoring requirements because they will already be' covered by the principal licensee.
The Comission does not egree that contractors or subcontractors who are also licensees should have a reduced burden by virtue of the fact that they are being employed by another licensee. The final rule has-eliminated the o reouirements for--licensees to review t.ettlement agreements in Section 210 cases prior to their being executed.- Nevertheless, licensees are responsible for assuring that regulated activities they are performing under their licenst are in accordance with NRC regulatory requirements and this responsibility i l
- c e
cannot be delegated away. The fact that several er, titles within the chain of responsibility may be licensees dees not relieve 6ny of thou f rom the j responsibility of assuring that activities performed under their licenses are perfortred in accoroar.co with NRC regulatory requirements.
- g. Contractor working for multiple licensees might require cultiple approvt.ls to execute a settlement agreenient.
The Ccnnission agrees that, as originally drafted, the proposed rule could have resulted in a contractor having to obtain multiple reviews of proposed settlement agreements. This could have been a hinderance to an empicyee obtaining a satisf actory settlement. The Corrmission's desire was not to restrict the ability of employees to reach satisfactory settlenient agreements with t, heir employers. The Commission believes the objective of assuring that settlement agreements do not contain improper restrictions on employees bringing information to the NRC can be obtained without the need for
-multiple entities reviewing Section 210 settlement agreements. The final rule i has eliminated the requirement that licensees have a prior review of their '
contractors' Sectico 210 settlement agreements. l
- 4. One Instance Is Not A Sufficient Basis For Adopting A Rule. !
Several commenters believed that the one instance that was notec by the , Corrmission in the proposed rulemaking was not sufficient to justify modifying , a A
the regulatiers, in fact, et the titre the proposec regulation was published, the Comission had already learned that other agreements, apparently containing restrictive clauses, might have been executed. Concurrently with the proposed rulemaking, nuclear power plant licensees, their contractors, and major r.uclear materials and f uel cycle licensees were requested pursuant tc an April 27, 1989, letter from the NRC staff to review existing agreerr.ents to determine if they containee possibly impermissible restrictions. As a result of that review licensees initi611y identified inore than a dozen additional agreements with language which could beunterpreted as restricting ; corrunications with the l'RC. The Commission believes that the information received as e result of the staff's April 27, 1989, letter confirns the Connission's original belief that the problem of restrictive settlenent agreements is serious enough to be directly addressed in our regulations.
- 5. The Proposed rule Could Abrogate Proprietary Agreements.
The Commission understands this comment to have been concerned with the rule's provisions requiring licensees to review proposed settlement agreements of their contractors and with conce.n> ? bout enployee communicaticns with the flRC. The NRC has regulations to specifically protect proprietary information received by the Commission. See 10 CFR 662.790, 9.17, and 9.104 Thus, the , Commission sees little merit to the concern that eraployees must be moce to
. o follow certo1n 'rocedures p before they can brir.c proprietery inforr.ation to the Commission, in f act, such a restriction would be likely to inhibit 6n employee f rom coming to the !!RC. With respect to corcunications with the !!PC, en.ployers should do no more than reovire employees to inform the kRC that - information being provided may be proprietary so that the NRC can appropri-ately handle the information to prevent eny inapprcpriate public disclosure. With respect to concern over licensees reviewing contractor / employee settlement agreements that may contain proprietary information, the finel rule has eliminated the specific requirement for such reviews. But, to the extent that, in a licensee's judgment, compliance with the rule requires that it obtain access to proprietary information from its contractors, then access must be provided. In f:RC's view, assuring free flow of safety inform 6 tion overrides commentors concerns about disclosure of proprietary information to
. licensees.
- 6. A Backfit Analysis is Required.
As originally drafted, the proposed rule specifically required that licensees develop procedures to ensure thet licenstes' contractors and subcontractors dio not place in settlemerit agreements any restrictions on employees coming to the NRC with information. This included specifically requiring that licensees have procedures to require contractors to notify them it a Section 210 complaint was filed with the Departroent of Labor and that any
- e 0
proposeo settlement be forwarded te the licenset. prior to its execution. Several cornenters believed that this requirerrent for char.ges in precedures amounted to a backfit nquiring a backfit analysis. Giver the Secretary of Labor's decision in the Follizi case that such agreernents are esdinst public policy, there is some question as to whether the propnsed regulation would have imposed a new requirement on licensees or contractors. In any event, the finb1 rule has elininateo any specific requirement for procedur61 changes. The final rul6 declares, consistent with the pollizi decision, that agreerrents which place restrictions on employees communicating information with the NRC are prohibited. Licensees may or may not choose to modify existing procedures to assure compliance with the final rule's requirements. Some licensees may, in fact, alrt:ady have procedures in place addressing these issues as a result of the staff's April 27, 1989, letter notifying them of the NRC's concerns. But, in any event, 1t is for licensees themselves to decide hw the prohibition on restrictive agreements is to be implemented (except for the requirement to notify contractors, which is mandatory). With tt.' rLquirement to develop procedures removed, the ruit. merely prohibits potential barriers to consnunication with NRC. As such it does not fall within the definition of backfit in 50.109. The backfit rule does not apply to NRC information requests (see 60.54(f)) and it would be anomalous to apply the backfit rule to similar !!RC measures to ensure tbbt inforration is brought to its attention. .
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.7. The Commission Should Issue A Policy Statement Insteaa Of A Fule.
One commenter suggested that a po11cy statement was sufficient to accomplish the Commission's purposes and that the rule was urne.cessary. The Commission ooes not agree that a policy statement would be 6ppropriate in this instance. This is not an area in which the Commissica needs to gain experience with application of a policy statement before a final rule can be developeo. The Commission is' not aware of any other reason that might nicke a policy statement preferable to a rule in this case. The Commission concluces that it is appropriate to procted with forral rulemaking to address this t issue.
- 8. Add Language To The NRC Form 3 Concerning Settlement Agreements.
Under 10 CFR Part 19, licensees are required to post an NRC Form 3 at all work sites. -This form informs employees of their rights and protections in bringing safety informatirn to the NRC. One commenter has suggested that the NRC add language to this form telling workers that settlement agreements nay not 1r.: pose restrictions on their bringing safety information to the NRC. The NRC will consider adding such language to the NRC Forn 3 in future rev1sions of the term to' reflect the restrictions contained in this rulemaking. k
- El -
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- 9. Tlie Proposed Rule Would Interfere W1th The Duty Of Employees To Inform Their Management Of Safety Issues.
The Commission believes it is preferable for employees to bring safety or other concerns to the attention of their management. It is the employees' ; management that can most pronptly act to address those issues. Thus, if an employee lacks confidence in his management and feels conpelled to come to the NRC firra, a delay in addressing a safety issue wi's inevitably result.
\ However, in those cases where employees do not feel that they can talk obout a r safety problem with their management, they must be f ree of any restriction which would prevent their raising the issue with the NRC. The proposed rule coes not introduce eny unwarranted intrusion into the employer /enployee relationship. The rule dces not prohibit employces from going to management first with their safety concerns. It is up to licensees to create a work ,
atmosphere'in which employees feel confident in bringing safety concerns directly to their management,
- 10. . Responses To The Questions In 1he Proposed Rule.
-q The majority of commenters did not specifically connent on the two questions posed by tim Conmission in the proposed rule. To a larg9 extent their. comments on tne proposed rule itself superseded any need to specifically
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address the questions proposed. The Commission summari:es below the specific , 1 contents that were received on the questions presented in the proposed rule,
- a. Should the rule prohibit all restrictions on information to the .
1 Commission, or should limitations on an incisidual appearing before a i Ccumission adjudicatory board (e.g., requiring an individual to resist a subpoena) be permissible as long as other avenues for providing infornt. tion to the Commission are av611able? Five consenters believed that some restrictions shculo be allowed if there is at least one avenue open to communicate with the NRC. Four commenters beiteved that no restrictions on communications should be allowed. The Commission believes that no restrictions on bringing information to the Commission should be allowed. In the Po11121 decision the Secretary of Labor noted that, even when a prevision specifically included a statement that safety information could be brought to the NRC's attention, restrictions en
. voluntarily appearing as a witness in NRC proceedings would be against public policy. Given the numerous possible restrictions that could te put into
. settlement agreements, it would be difficult, if not impossible, to design
( guidance which could differentiate between a " good" restriction and a " bad" restriction,'even if the Commissior were inclined to do so. .The Commission as chosen to ban all restr1ctions on coming to the hRC with information a bearing on its regulatory responsibilities rather than engaging in- that attempt.
- b. Sheuld the rule irapose an adcitional requirement that licensees and licenst applicants must ensure that all agreements effecting en:ployment, including those of their contractors or subcontractors, contain a provision stating that the egreement in ro way restricts the employee from providing information to the Commission?
Of the concents received on this question, four connenters opposed reauiring an af firrative statenent in til settlement agreencnts end four comnienters favoreo requiring such a statement. For the inost part, those opposing the requirement felt it was unduly burdensory and would unnecessarily ! interfere with the employee / employer relationship. Yhose in favor of this i requirement f elt that it would be beneficial in clarifying for crployees what their rights were and it would also remove any ambiguity caused by other parts of the settlement agreement. The Connission has decided not to require a specific clause in settlenent agreen.cnts. .The utility of such a clause _ is somewhat suspect given that a clause specifically providing that the-employee had the right to bring safety concerns to the NRC was not sufficient to niuke the restrictive c16use in the Pollizi case acceptable. In addition, given that the Commission alreocy requires that empipyees be notified through the posting of an NRC Form 3 that they have the right to come to the NRC, it is not evident that the benefit to be pained by requiring such a clause in settlement agreements would justify
.this type of intrusion into the employer / employee relationship.
- 2e - i
- 12. Aoditional Comments And Revisinns.
One commenter provided a cetailed discussion of the Commissien's policies with respect to enfor.cemtnt of the current NRC regulations on employee i protection. Those comments, althcugh related, go beyond the scope of the specific action being censidered in this ruleneking. However, those specific
?
consents have been foruerded to the NRC Office of Enforcement for its consideration. In addition, comments included suggestions to file all settlement
- agreements in the docket for the facility in question; to require that the ban on restrictions apply to communications by an employee with anycre, not just hRC; and to require that all f uttre contracts by a licensee with contractors p or subcontractors contain contractual obligations to prohibit restrictive i
. agreements.
The Commission has cons 1dered these suggestions and has concluded that the most efficient method of achieving the goal of the rulemaking, which involves the minimum necessari intrusion on the employee / employer relationship and the' relationship between licensees ano their contractors or subcontrac- i tors, is to simply prohibit provisions in a settlement agreement with an
- employee which would in any way restrict that employee from coming to the NRC with safety information bearing on NRC regulatory responsibilitics. The
-Commission is not convinced.that requiring the filing of agreerents in the NRC docket files,~ prohibiting restrictions on communications with entities other l
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than the NRC, or requiring specific clauses in licensee / contractor contracts would significantly improve th e Commission't tbility to achieve the goals of this rulemaking. The last line of the first paragraph being added to Parts 30, 40, 50, 60, 4 61, 70, and 72 of the regulations has been modified by referencing the definition of " protected activity" which appears in each port of the regulations. This was done to assure that the emp1pyte protection provisions consistently protect the same employee conduct. l Finally, in publishing the proposeo rule, comparable revisions to 10 CFR part 61 were inadvertently not included in the proposed rule. Part 61 contains, at 661.9, comparable restricticns with respect to employee protections as appear in the other Parts of the Commission's regulations. Accordingly, the appropriate revisions to_Part 61 are included in this fin t1 rulemaking. Environnental Impact: Categorical Exclusion The NRC has determined that this final rule falls within the scope of the actionsoescribedincategoricalexclusion10CFR51.22(d). This amendment provides the Commission with the ability to take enforcement action for _, agreements which have already been declared to be against public policy.
Therefore, neither an environmental impact statement nor on invironmental assessment has been prepared for this rule.
- paperwork Reduction Act Statement This final rule contains no information collectich requirerents and therefore is not subject to the requirements of the Paperwork Rtcu: tion Act of 1980 (44U.S.C. 3501etseq.).
Regulatory Analysis The final rule prohibits provisions in agreements aff ecting employment that restrict employees from providing information to the Commission. The' objectives of the final rule are to ensure that such agreenents do not restrict the free flow of safety or cther information to the Commission and that the intent of Section 210 of the Energy Reorgenization Act is not frustrated. The Connission believes that the clearest end n.ost effective rwthod of achieving these objectives, and avolaing potential uncertainty and conflict regarding the interpretation of specific provisions, is to prohibit provisions in these agreenients that in any way restrict the flow of information to the Commission, the Commission's adjudicatory boards, or the NRC staff. ~The alternative'of imposing an acditional requirement on licensees and license applicants to require any agreement offecting employment to' , include a provision steting that the agreement in no way restricts the w
O 4 employee from providing information to the Connission was rejected as unnecessery to achieve the objectives of the rule. The final rule will not irpose any substantial costs on licensees or license applicants. Regulatcry Flexibility Certification in accordance with the Regulatory Fitxitility Act of 1980 (5 U.S.C. 605(b)), the Connission certifies that this rule does not have a significant economic impact on a substantial number of small entities. Although the proposed rule would have imposed procedural requirements on a wide range of Commission licensees of varying size, the final rule prohibits agreer.cnts that restrict eniployees who are performing or have performed work related to licensed activities from providing information to the Commission cn potential ; violations or hazards. The final rule does not require licensees to develop 1 i detailed procedures for review of all contractor and subcontractor settlement agreements. The Connission believes that the final. rule does not impose a ; significant economic impact on Commission licensees who would be ccnsidered "small entities." Backfit Analysis i The NRC has determined that the backfit rule,10 CFR 50.109, does not ; i apply to this final rule and, therefore, that a backfit analysis is not required for this final rule because these amendments do not involve any provisions which would impose backfits as oefined in 10 CFR 50.109(a)(1).
List of Subjects 10 CFR Part 30 Byproduct material, Government contracts, Intergovernmental relations,
~
l Isotopes, Nuclear materials, Penalty, Radiation protection, Reporting and recordkeeping requirerents. 10 CFR Part 40 Government contracts. Hazardous materials - transportation, Nuclear materials, Penalty, Reporting and recordkeeping requirements, Source material, Uranium. 10 CFR Part 50 Antit,ust, Classified information,_ Fire-protection, Incorporation by reference, Intergovernmental relations, Nuclear power plants and reactors, Penalty.. Radiation. protection, Reactor s1 ting criteria, Reporting and recordkeeping requirements. 10 CFR Part 60 l l l e _ , , _ , , , - , , , , , , , , , , , , , , , , _,,,,,,,,m_m
., o i'- 29 High-level waste, Nuclear power plants and reactors, Nuclear materials, ,
Penalty, Reporting and recordkeeping requirements, Weste treatment and disposal. 10 CFR Part 61 , Low-level waste, Nuclear materials, Penalty, Reporting and recorakeepir;g requirements, Waste treatment and disposal. 10 CFR Part 70 4 Hazardous materials - transportation, Nuclear materials, Packaging and containers, Penalty, Radiation protection, Reporting end recordkeeping
, requirements, Scientific equipment, Security measures, Special nuclear material.
i 10 CFR Part 72 Manpower training programs, Nuclear materials, Occupational safety and health, Reporting 1and recordkeeping requiren.cnts, Security measures, Spent fuel. 10 CFR Part:150 l
Ha:ardous materials - transportaticn, Intergovernmental relations, Nuclear materials, Fenalty, Reporting and recordkeepirp requirements, Security measures Source mattriel, Special nuclear caterial. For the reasons set out in the preamble and under the authority of the Atonic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR Parts 30, 40, 50, 60, 61, 70, 72 and 150. PART 30 - RULES OF GENERAL APPLICABILITY TO DOMESTIC LICENSING OF BYPRCDUCT ttATERIAL
- 1. The authority citation f or Part 30 is revised to read as follows:
AUTHORITY: 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, 88 S. tat. 1242, as amended, 1244,1246(42U.S.C.5841,5842,5646). Section 30.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 (42 U.S.C.5851).Section30.34(b)alsoissuedundersec.184,68 Stat.954,as amended (42U.S.C.2234).Section30.61alsoissuedundersec.187,68 Stat. 955(42U.S.C.2237). For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.:i.C. 2273); I
$l30.3,30.7(g),30.34(b),(c)and(f),30.41(a)and.(c),and30.53areissued under secs. 161b, 1611, and 1610, 68 Stat. 948, as amended (42 U.S.C.
1 i
e . c .
-3'-
1 e _2201(b));and6630.6,30.9,30.36,30.51,30.52,30.55,end30.56(b)ano(c) are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
- 2. In i 30.7, the introductory portion of paragraph (c) is emended and -
a new paragraph (g) is added to read as follows: ;
$ 30.7 Emp1pyee protection.
(c)Aviolationofparagraph(a)orparagraph(g)ofthissectionbya Commission licensee, an applicant f or a Cornission license, or a contractor , or. subcontractor of a Commission licensec or applicant may be grounds for- * * * (g)Noagreementaffectingthecompensation, terms,conditionsand privileges of employnent, including an agreement to settle a complaint filed by an emp1pyee with the.0epartment of Labor pursuant to Section 210 of the , Energy Reorganization Act of 1974, may contain any provision which would prohibit,_ restrict, or otherwise discourage en employee from participating Lin protected activity as defined in paragraph (a)(1) of this section, including, but not limited to, providing information to the NRC on potential violations or other matters within NRC's regulatory responsibilities.
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PART 40 - DONESTIC LICENSING OF SOURCE MATERIAL l 1
- 3. The authority citation for Part 40 is revised to read as fo11cws:
l i AUTHORITY: Secs. 62, 63, 64, 65, 81, 161, 182, 183, 186, 68 Stat. 932 I 933, 935, 948, 953, 954, 955, as ernended, secs.11e(2), 83, 84, Pub. L. 95-604, 92 Stat. 3033, 6s arr> ended, 3039, sec. 234, 83 Stat. 444, as amended (42U.S.C.2014(e)(2),2092,2093,2094,2095,2111,2113,2114,2201,2232, 2233, 2236, 2282); sec. 274, Pub. L. 86-373, 73 Stat. 680 (42 U.S.C. 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 aw nded by Pub. L. 97-415,96 Stat.2067(42U.S.C.2022). < Section 40.7 also issueo under Pub. L. 95-601, sec. 10, 92 Stat. 2951 (42 l U.S.C.5851).Section40.31(g)alsoissuedundersec.122,68 Stat.939(42 U.S.C; 2152). Section- 40.46 a' iso issued under sec. '184, '68 Stat. 954, as amended (42U.S.C.2234).Section_40.71alsoissuedundersec.187,68 Stat. 955_(42U.S.C.2237). - For the purposes of sec. 223, 68 Stat. 958, as amended-(42 U.S.C. 2273);
$$40.3,40.7(g),40.25(d)(1)-(3),40.35(a)-(d)and(f),40.41(b)and(c),
40.46', 40.51(a) and (c), and 40.63 are issued under sec.161b,1611 and 1610, 68 Stat.948,asamended(42U.S.C.2201(b));and9940.5,40.9.40.25(c), ' (d)(3),and(4),40.26(c)(2),40.35(e),40.42,40.61,40.62,40.64,and40.65 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)). , G
..
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4 In i 40.7, the introductory portion of paragraph (c) is anended and ) a new paragraph (g) is added to read as follows: I l l 6 40.7 Employee protection. i I I l (c) A violation of paragraph (a) or paragraph (g) of this section by a Commission licensee, an applicant for a Commission license, or a contractor or subcontractor of a Consnission licensee or applicant may be grounds for- * * * (g) No agreement affecting the compensation, terms, conditions and ' privileges of employment, including an agreement to set.tle a complaint filed by an employee with the Department of Labor pursuant to Set tion 210 of the Energy Reorganization Act of 1974, may contain any provision which would , prohibit, restrict, or otherwise discourage, an employee from participating in protected activity as defined in paragraph (a)(1) of this section, including, but not limited to, providing information to the flRC on potential violations or other matters within NRC's regulatory responsibilitics. PART 50 - DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES l
o
- 5. The authority citation for Part 50 is revised to reac as follows: i AUTHORITYt Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 6E Stat.
936, 937, 938, M B, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 1244, asamended(42U.S.C.2132,2133,2134,2135,2201,2232,2233,2236,2239, j 2282); secs.201,asamended. 202, 206, 88 Stat. 1242, as amenced, 1244, 1246 ; (42U.S.C.5841,5842,5846). Section50.7alsoissuedunderPub.L.95-601,sec.10,92 Stat.2951(42 U.S.C.5851).Section50.10alsoissuedundersecs. 101, 185, 68 Stat. 936, 1 955,asamended(42U.S.C.2131,2235);sec.102, Pub.L.91-190,83 Stat.853 l 1 (42U.S.C.4332). Sections 50.13, 50.54(dd) and 50.103 also issued under sec. ! 108, 68 Stat. 939, as amended (42 U.S.C. 2138). Sections 50.23, 50.35, 50.55, end 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(42U.S.C.'4332). Sections 50.34and50.54alsoissuedundersec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58, 50.91, and 50.92 also issued'uncer Pub. L. 97-415,'96. Stat.2073(42U.S.C.2239).Section50.78
'also issued under sec.122, 68 Stat. 939 (42 U.S.C. 2152). Sections 50.80 through50.81alsoissuedundersec.184,68 Stat.954,asamended(42U.S.C.
2234).AppendixFalsoissuedundersec.187,68 Stat.955(42U.S.C.2237). For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273);
$550.7(f), 50.46(a) and (b)', and 50.54(c) are issued under sec.161b,1611, and1610,68 Stat.948,asamended(42U.S.C.2201(b));6650.7(a),
50.10(a)-(c),50.34(a)ano(e),50.44(a)-(c),50.46(a)and(b),50.47(b), 50.48(a),(c),-(d),and(e),50.49(a),50.54(a),(1),(i)(1),(1) (p),
(q), (t), (v), and (y), 50.55(f), 50.55a(a), (c)-(e), (p), and (h), 50.59(c), 50.60(a), 50.62(c), 50.64(b), and 50.80(a) and (b) are issued under sec. 1611, 68 Stat. 949, as amended (42 U.S.C. 2201(1)) andil50.49(d),(h),and(j), 50.54(w),(z),(bb),(cc),and(dd),50.55(e),50.59(b),50.61(b),50.62(b), 50.70(a),50.71(a)-(c)and(e),50.72(a),50.73(a)and(b),50.74,50.78,and 50.90 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
- 6. In i 50.7, the introductory portion of p&ragraph (c) is emercea and ,
a new paragraph (f) is added to read as follows: i 50.7 Employee protection. (c)Aviolationofparagraph(a)orparagraph(f)ofthissectionbya Commission licensee, en applicant for a Commission license, or a contractor or subcontractor of a Commission licensee or applicant may be grcunds for- * *
- l s s
- s' s (f) No agreement t.ffecting the compensation, terms, conditions and privileges of employ!:ent, including an agreement to settle a complaint filed by an employee with the Department of Labor pursuant to Section 210 of the !
1
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I Energy Reorganization Act of 1974, may contain any provision which would
. prohibit, restrict, or otherwise discourage, cn employee from particip6 ting in protected activity as defined in paragraph (a)(1) of this section, including, I but not limited to, providing information to the NRC on potential violations or other matters within NRC's regulatory responsibilities.
PART 60 - DISPOSAL OF HIGH-LEVEL RADIDACTIVE WASTES IN GECLOGIC REPCSITORIES
- 7. The. authority cit
- tien for Part 60 is revised to read as followc:- -i 1
-AUTHORITY: Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat. 929, I 4
-930,1 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071, 2073, 2092, 2093,2095,2111,22C1,2232,2233); 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); sec. 102,_ Pub. L. 91-100, 83 Stat. 853 (42 U.S.C. 4332);
-4 secs. 114,.121, Pub. L. 97-425, 96 Stat. 22139, 2228 - as amended (42 U.S.C. _
_i 10134,10141). For the purposes of sec. 223, 68 Stat. 958, as _ amended (42 U.S.C. 2273); 6560.9(f),60.10,60.71to60.7,areissuedundersecs.1611and1610,68 1 Stat.950,asamended(42U.S.C.2201(o)).
- 8. In_6'60.9, the introductory portion of paragraph (c) is amended ana ,
a new paragraph (f) is added to read as follows: , L
l;,.[ , I
. 1 1
1 i 6160.9 Employee protection j l
~
(c) A violation of paragraph (a) or paragraph (f) of this section by e ] Commission licensee, an. applicant for a Commission license, or a contractor or subcontractor of a Commission licensee or applicant may be grounos b i for- * * * - _(f) No agreement _affecting the compensation, terms, conditions and privileges-of employment, including an agreement to settle a complaint filed l by an employee with.the Department of Labor pursuant to Section 210 of the j Energy Reorganization Act of_1974, may contain any provision which would ! 4 L prohibit, restrict, or otherwish discourage, an employee from participating in I h protected activity as defined in paragraph-(a)(1) cf this section,-including, - l 1
;but not: limited to,-providing _ information to- the NRC -on potential' violations or other matters withn NRC's regulatory responsibilities. 1 l
i
)
.PART 617- LICEllSIllG REQUIRENEllTS FOR LAND DM'0 SAL OF RADIDACTIVE WASTE l
- 9. The authority citation for part 61 is revised to read as follows:
ny !
- l. . ,,
l' l AUTHORITY: Secs 53, 57, 62, 63, 65, 61,161,182,183, 68 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). i For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2270;
-Tables 1 and 2,-5561.3, 61.9(f), 61.24, 61.25, 61.27(a), C1.41 through 61.43, 61.52, 61.53, 61.55, 61.56, and 61.61 through 61.63 are issuec under secs. ;
161b,1611and1610,68 Stat.948,asamended(42U.S.C.2201(b));$$61.9a, 61.10 through 61.16, 61.24 and 61.8J are issued under sec. 1610, 68 Stat. 950, asamended(42U.S.C.2201(o)). 4 i
- 10. In 6 61.9, the introductory portion of paragraph (c) is amended and -
-{
anewparagraph(f)isaddedtoreadasfollows:
-5 61.9 Employee protection.
l (c) A violation of paragraph (a) or para 9raph (f) of this section by a. { Commission licensee, en applicant for a Comission license, or a contractor or subcontractor,of a Commission licensee or applicant may be grounds I for- * *'*
. (f)Noagreementaffectingthecompensation, terms,conditionsand privileges of employment, including an agreement to settle a complaint filed ;
by an employee with the Departr%nt of Labor pursuant to Section 210 of,the Energy Reorganization Act of 1974, may contain any provision which would
. prohibit, restrict, or otherwise discourage, an employee from participating in
-protectedactivityasdefinedinparagraph(a)(1)cfthissection, including, but not limited to, providing information to the flRC on potential violetions or other matters within llRC's regulatory responsibilities.
PART DOMESTIC LICENSING 0F SPECIAL NUCLEAR MATERIAL 'i
- 11. The authority citation for Part 70 is revisec to read as follows:
AUTl!0RITY: Secs. 51, 53, 161, 182, 183, 66 Stet. 929, 930, 948, 953, 954,
- as amended, sec. ' 234, 83 Stat. 444, as amended (42 tl.S.C. 2071, 2073, 2201, 2232, 2233, 2282); secs 201, as amended, 202, 204, 206, 88 Stat. 1242, as amended,3 1244,.1245, 1246 (42 U.S.C. 5841, 5842, 5845,.5846).
Sections 70.'1(c) and 70.20a(b) also issued under. secs. 135, 141, Pub. L. 97-425,196. Stat.2232,2241(42U.S.C.'10155,10161). Section 70.7 also issue'd under Pub. L. 95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5851). Section-70.21(g) also . issued under sec.122, 68 Stat. 939 (42 'U.S.C. 2152). Section 70.31 also iesued under sec. 57d, Pub. L. 93-377, 88 Stat. 475 (42 U.S.C. 2077). Sections 70.36 and 70.44 also issued under sec.184, 68 Sta't. 954, as amended-(42 ll.S.C. 2234). Section 70.61 also issueo under secs. 186, 187, 68
- o. ; V n;
Stat; 955 (42 U.S.C. 2236, 2237). Section 70.62 also 1ssued under sec. 108, 60 Stat. 939, as amended (42 U.S.C. 2138). Fcr the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273); 6670.3, 70.7(o), 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 secs. 161b, 1611, and 1610, 68 Stat. 940, as amended (42 U.S.C. 2201(b) b 6670.7 -70.20a(a) and (d), 70.20b(c) and (e), 70.21(c),
-70.24(b),70.32(a)(6),(c),(d),(e),and(g), 70.36,70.51(c)-(g),70.56, 70.57(b)and(d),and70.58(a)-(g)(3)and(h)-(j)areissuedundersec.1611, 1 68' Stat.949,asamended(42U.S.C.2201(1));and6670.5,70.9,70.20b(d)and l (e)',70.38,70.51(b)andfi), 70.52,70.53,70.54,70.55,70.58(g)(4),(k),
I
*and(1),70'.59,and70.60(b)and(c)areissuedundersec. 1610, 68 Stat. 950, as. amended (42.U.S.C.2201(o)).
- 12. In 6'70.7, the introductory portion of paragraph (c) is emenoed and anewparagraph(g)isaddedtoreadasfollows:
~
6 70.7_ Employee protection. l
'(c) A violation of paragraph. (a) or paragraph (g) of. this section by 6 ,
Commission licensee, an applicsnt for a Commission license, or a contractor i
7-41 - orisubcontractor of a Commission licensee or applicant may be grounds f or- * *
- 4 l
- (g) flo agreement affecting the compensation, terms, conditions and n
privileges.of employment, including an agreement to settle a compleint fileo i
< by an employee with the Department of Labor pursubnt to Section 210 of the ,
t Energy Reorganization Act of 1974, may contain eny provision which would 1 prohibit, restrict, or otherwise, discourage, an employee from participating in protected activity as defined in paragraph-(a)(1) of this section, including, f but not limited to, providing information to the NRC on potential violations 4 .or other matters within NRC's regulatory responsibilities. x PART 72 - LICEllSING REQUIREMEllTS FOR Tile INDEPEtiDEllT STORAGE OF SPENT tlVCLEAR FUEL AllD ll!Gil-LEVEL RADI0 ACTIVE WASTE
- 13. .The' authority citation for Part 72 is revised to read as follows:
AUTHORITY: Secs. 51,.53, 57, 62, 63, 65, 69, 81, 161,'182, 183, , 184, 186,~187 189, 68 Stat. 929,1930, 932, 933, 934, 935, 948, 953,-954, 955,- cas amended, sec. 234, -83 Stat. 444, ~ as amended (42 U.S.C. 2071, 2073, 2077, i 2092,2093,'2095,2099,2111,2201,2232,2233,2234,2136,2237,2238,2282); ' sec.:274,- Pub. L. 86-373, 73 Stat.' 688, as amended (42 U.S.C. 2021); sec. 201, .
T .. ;. . as amended, 202, 206, 88 Stat. 1242, as mended, 1244, 1246 (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 91-190, 63 Stat. 853 (42 U.S.C. 4332); Secs. 131, 132, 133, 135, , 137, 141, Pub. L. 97-425, 96 Stat. 2229, 2230, 2232, 2241, sec. 148, Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10151, 10152, 10153, 10155, 10157, 10161,10168).
~Section72.44(g)alsoissuedundersecs.142(b)and146(c),(c), Pub.L.
100-203,101 Stat.:1330-232,.1330-236(42U.S.C.10162(b),10168(c),(c)). Section 72.46 also issuea under sec. 189, 68 Stet. 955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425,-'96 Stat. 2230 (42 U.S.C. 10154). Section72.96(d)also !
. issued under sec. 145(g), Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C.
10165(g)). Subpart J also issued under secs. 2(2),2(15),2(19),117(a), 141(h), Pub',L.97-425,96 Stat.2202,2203,2204,2222,2224(42U.S.C. < 10101,10137(a),10161(h)). For'the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273);
$672.6,72.10(f),72.22,72.24,72.26,72.2S(d),72.30,72.32,72.44(a),
(b)(1),(4),(5),-(c),(d)(1),(2),(e),(f),72.48(a),72.50(a),72.52(b),
~72.72(b),(c),72.74(a),(b),72.76,72.78,72.104,72.106,72.120,72.122, 72.124,72.126,72.128,72.130,72.140(b),(c),72.148,72.154,72.156, 72.160, 72.166, 72.~68, 72.170, 72.172, 72.176, 72.180, 72.184, 72.186 are- l issued under sec.161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b));
'6672.10(a),(e),72.22,.72~24,72.26,72.28,72.30,.72.32,72.44(a),(b)(1), ;
=(4),(5),(c),(d)(1),(2),(e),-(f),72.48(a),72.50(a),72.52(b),
.72.90(a)-(d),.72.92',.72.94,72.98,72.100,72.102(c),(d).-(f),72.104, l .72.106,72.120,72.122,72.124,72.126,72.128,72.130,72.140(b),(c),
1 l' y u
y 3 e 72.142, 72.144, 72.146, 72.148, 72.150, 72.152, 72.154, 72.156, 72.158, 72.160, 72.162, 72.164, 72.166, 72.168, 72.170,-72.172, 72.176, 72.180,
-72.182, 72.'184, 72.186, 72.190, 72,192, 72.194 are issued under sec. 1611, 68 Stat. 949, as amended (42 U.S.C. 2201(1)); and sl72.10(e), 72.11, 72.16, 72.22,72.24,72.26,72.28,72.30,72.32,72.44(b)(3),(c)(5),(d)(3),(e),
(f),72.48(b).-(c),72.50(b),72.54(a),(b),(c),72.56,72.70,72.72,
-72.74(a),(b),72.76(a),72.78(a),72.80,72.82,72.92(b),72.94(b),
72.140(b),(c),(d),72.144(a),72.146,72.148,72.150,72.152,72.154(a), (b),72.156,72.160,72.162,72.168,72.170,72.172,72.174,72.176,72.180, 72.184, 72.186, 72.192 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
- 14. In i 72.10, the introductory portion of paragraph (c) is amended and a new paragraph (f) is added to read as follows:
0 72.10 Employee protection. (c) A violation of paragraph-(a) or paragraph (f) of this section by a
. Commission licensee, an applicant for a Commission license, or a contractor or' subcontractor of a Commission licensee or applicant may be grounds
.for- * *
- l L
L
U , L .1 = .' f (f) flo egreement affecting the compensation, terms, conditions and privileges of employment, inclucing an agreement to settle a complaint filed by an employee with the Department of Labor pursuant to Section 210 of the ! Energy Reorganization Act of 1974, n.ay contain uy provision which woulc prohibit, restrict, or otherwise discourage, an employee from participating in ! protected activity as defined in paragraph (a)(3) of this section, including, I but rot limited to, providing information to the_l;RC on potential violatiens :
-or other matters withn NRC's regulatory responsibilitics. l i
l PART 150 - EXEMPTIONS AND CONTINUED REGULATORY AUTHORITY lil AGREEMENT STATES i F Af4D IN 0FFSHORE WATERS Ul;E,ER SECTI0ti 274 )' i
- 15. The authority citation for Part 150 continues to reac as follws: ;
i i AUTHORITY: Sec.161, 68 Stat. 948, as amended, sec. 274, 73 Stat. 688 (42 .i i U.S.C. 2201,.2021); sec. 201, 88 Stat. 1242, as amended.(42 U.S.C. 5841). Sections 150.3,'150.15,:150.15a, 150.31, 150.32 also issued under secs. 1 11e(2), 61,-68 Stat. 923, 935, es amended, secs, 83, 84, 92 Stat. 3033, 3039 (42U.S.C.2014e(2),2111,2113,2114). Section 150.14 also issued unaer sec, li 53, 68 Stat. 930, as amended (42 U.S.C. 2073). Section 15C.15 also-issued l unner secs. 135,141, Pub. .L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C.10155,- l10161). Section 150.17a also issued,under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 150.-30 also issued under sec. 234, 83 Stat. 444 (42 U.S.C. j 2282). . I f a
c <a . 0 for the purposes of sec. 223, 68 Stat. 958, as 6 tended (42 U.S.C. 2273); f El150.20(b)(2)-(4)and150.21areissuedundersec.-161b,6EStat.948,as
- amended (42U.S.C.2201(b));$150.14isissued'ader sec. 1611, 68 Stat. 949, asamended(42U.S.C.2201(1));and$5150.16-150.19and150.20(b)(1)are
' issued under sec. 1610, 68 Stat. 950, ; amended (42 U.S.C. 2201(o)).
- 16. In 6 150,20, the introductory text of paragraph (b) is revised to read as follows:
5 150.20 Recognition of Agreement State licenses
-(b) Notwithstanding any provision to the contrary in any specific license issued by an Agreement State to a person engaging in activities in a ,
non-Agreement State or in offshore waters unoer the general licenses provided in this section, the general licenses provided in this section , are subject to the provisions of 60 30.7(a) through (f). 30.9,30.14(d) and $5 30.34, 30.41, and _ll30.51 to 30.63, inclusive, of Part 30 of this chapter;$940.7(a)through(f),40.9,andis40.41,40.51,40.61,40.63 inclusive, il 40.71 and 40.81 of Part 40 of'this ch6pter; and 6 70.7(a). through-(f), 9 70.9, ana il 70.32, 70.42, 70.51 to 70.56, inclusive,
~
.$6 70.60 to 70.62, inclusive, and 5 70.7 of Part 70 of this chapter; and to the provisions of Parts 19, 20 'and 71 and Subpart 0 of Part 34 of this chapter. In addition, any person engaging in activities in non-Agreement l
l I l
l t .,** - 1
- l
' States or in offshore waters under the general licenses-provided in this section:
.j 1
. Dated at Rockville, MD, this day of , 1990.
t For the Nuclear Regulatory Commission. 1 Samuel J. Chilk, ! Secretary of the Commission. , j
- f.- .[
r g i t
.}
_ _ _ .}}