ML20217A898
| ML20217A898 | |
| Person / Time | |
|---|---|
| Issue date: | 01/31/1990 |
| From: | Carr NRC COMMISSION (OCM) |
| To: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| 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 AD21-2-64, NUDOCS 9011300232 | |
| Download: ML20217A898 (8) | |
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.. A F-F I R ' 2021-2-(Public) ,
RESPONSE _ SHEET TO: SAMUEL J. CHILK, SECRETARY OF THE COMISSION FROM: -CHAIRMAN CARR.
SUBJECT:
SECY-90-013 - FINAL RULE TO PROHIBIT '
AGREEMENTS RELATED TO EMPLOYMENT THAT WOULD RESTRICT THE FREE FLOW 0F INFORMATION TO THE-COMISSION APPROVED / w/coment DISAPPROVED ABSTAIN NOT PARTICIPATING: REQUEST DISCUSSION COMENTS:
-SeeattachedrevisionstotheFederalRegisterNotice.{
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SIGNATURE RELEASE VOTE / / I'3 Y h DATE WITHHOLD VOTE- / /
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[7590-01]
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NUCLEAR REGULATORY COMMISSION 10 CFR Parts 30, 40, 50, 60, 61, 70, 72 and 150 t
RIN: 3150-AD21' Preserv.ing the Free Flow of Inf ormation to the Commission r
AGENCY: - Nuclear Regulatory Commission. -
c iACTION: Final Rule. ;
.t SUMt ARY: ;The'Huclear Regulatory Commission is revising its rules governing i
the conduct of all Connission-licensees and license _ applicants.- The. final a
trule prohibits the: imposition of conditions .in settlement agreements under !
Section.210 of .tn= ; Energy Reorganization Act, or in other agreements effecting ;
employment,,that would prohibit, restrict, or otherwise discouraga any o cre,"estyAycC Lemployeefr(omproviding,theCommissionwithinformationonpotential' viola-
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.tions or other haz6rdous conditions. This rule is .necessary' to prohibit the use ofl provisions which would inhibit the free flow of informetion to the Commission in agreements related to. employment.
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satisfied with the outcome of the investigation, a hearing can be held before l an Administrative Law Judge, with review by the Secretary of Labor. The Secretary of Labor can issue an order for the employee to be rehired, or-otherwise compensated if the employee's case is justified.
In many cases, the employee and the employer reach settlement of the issues raised in the Department of Labor proceeding before completion of the formal process and a finding by the Secretary of Labor. Ir) general the eu <j am bru.cr&
Comission supports settlements as the provide remedies to employees without the need for litigation. However, a recent case has brought to the Comission's attention the potential for settlement agreements negotiated under Section 210 to impose restrictions upon the freedom of employees or
,former employees protected by Section 210 to testify or participato in NP.C licensing and regulatory proceedings or to otherwise provide information on potential violations or other hazardous conditions to the Commission or the P
NRC staff. (See-Texas Utilities Electric Co., (Comanche Peak Steam Electric X Station Units 1 and 2), CLI-88-12, 28 NRC 605 (1988); Texas Utilities Electric Co., (Comanche Peak Steam Electric Statior, Units 1 and 2), CLI-89-06, NRC' (1989) e Comission's' follow-up to the above case has con- U
. firmed that other instances of questionable restrictions do exist in a variety of settlement agreements, not limited to Section 210 proceedings.
The Commission has concluded that a~Section 210 settlement agreement, or any other agreement affecting employment, which restricts the treedom of an employee or former employee from freely and fully ccmmunicating with the
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1 Huclesr Regulatory Commissics about potential violations or other hazards falling within NRC's regulatory responsibility is unacceptable. These provisions may have a chilling effect on corrmunicaticns about- nuclear safety /h g security, or other matters, and would restrict, impece, or frustrate full end canaid disclosure to the Nuclear Regulatory Comission-about matters of regulatory significance. Any such agreement under which a person contracts to withhold safety significant information or testimony from the Nuclear Regulatory Comission could itself be a threat .to safety cnd therefore jeopardize the execution of the Agency's overail 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 Commission published a ,
. proposed rule amending its regulations to reou're 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
. . t Energy Reorganization Act, or in other agreements af fecting employment, that would prohibit, restrict, or otherwise discourage an employee from providing the'Comission with information on potential. violations or hazardous conditions.
The NRC has received 43 coments on the proposea rule from a variety of Comission-licensees, private individuals, and inoustry organizations. A l
summary: of those comments .bnd the Comission's responses to those comments l folicws. Before discussino those comments, however, two additicnal events
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- 1. The Proposed Rule As Draf ted is Much Too Brono in Senpe.
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' Almost half the commenters complained that the scope of the rule was much I
- too broad, rendering its inplementation both unnecessary and impractical. The two areas cost frequently mentioned as being toe broadly written were the l
- rule's reference to " contractors and subcontractors" and the applicttion of the rule to "all settlement agreements." Each of those issues is indivicually-addressed be' low.
~a .- Application of the rule to contractors and subcontractors. .
Commenters that exhibited the most concern for the application of-the rule to contractors and subcontractors were materials.llcensees, such as hospitals,_whose overall' activities' involve on.ly a small percentage of licensed activities. Given the eitensive use of contractors in the-conduct condad by of licenstd activities - 'l that apnlied only -toYlicensees,Jand not to' bceasef
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or subcont@ractors, Accordingly, w 4
1 the rule prohibition is-broadly worded to cover 611 personsg c O.-36 _
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A separate but -related concern is that, as proposed, the rule .would -
4 require that licensees have procedures to oversee employee /empidyer agreeraents i for hundreds.of= contractors and subcontractors that;had nothing'to do with q their limited licensed activities. -It is well established in Commission
> precedent thht an' applicant or-licer.see cannot avoid respnnsibility for compliance with the Atomic Energy Act or the Commission's regulations by ,
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'oelegation of performance of license related activities to independent agents or contractors. Virginia Electric er.d Power Company, (North Anna Pcwer yc Station, Units 1 and 2) ALAB-324, 3 NRC 347 (April 15, 1976); Illinois Power 1 Company, (Clinton Power Station, Unit 1) LBP-81-61, 14 NRC 1735 (December 16,
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1981) n fact, the Comission has specifically noted the responsibility of K licensees for the conduct of their contractors with respect to cases of harassment by contractors of contractor employees. Metropolitan Eoiton Company et; a1. (Three tiile Island Station, Ur.it 1) CL1,85-2, 21 NRC 282, 3P9
-(February 25,1985).
Therefore, it is not necessary for the Comission tr, specifically require licensees to have procedures for assuring that their cont'ractors and l
' subcontractors comply with the Comission's regulations. Enforcenent actions ,
1 can be, and have'been, taken against licensees for the misconcuct.of their
- contractors ~ and subcontractors which results in violations of the Comission's a regulations; including violation by contractors of employee discrimination:
regulations. Thus, the Comission need not require that formal procedures be. j developed to, monitor contractor and subcontractor' activity in order for.
licensees to be-responsible for their contractors' and subcontractors' actions. .
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' The Comission did not intend to create an unwieldy system which would
-require some' licensees performing limited licensed activities to establish.a system to monitor the employer / employee relations of hundreds of contractors and subcontractors who are not directly involved in licensed activities.
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Accordingly, the final rule has been redified to cirectly prchibit agreements which prohibit, restrict, or otherwise discourage an employee fron ergaging in protected activity as defined in the Corrmission's en.ployee protection regu-lations. Although the final rule requires that litersees notify contractors and suberatractors of this regulation's rt:strictions, the final rule has not retained the reouirement that licensees develop specific procedures to essure complience by contractors or subcontractors. However, the Commission with respect to licerisees' responsi-reenphasizesU;md w.fthe dfprecedent Iletkted aerivo noted apove, fits by bilitiesforftheircontractorsanosubcontractors. The Commission will hold licensees responsible for violations of NRC regulatory requirements by contractors and subcontractors performing work related to the activities which
. are the responsibility of the'licersee under the applicable statutes, regulations, orders, or licenses. The selection of means tc ensure that violations do not occur, which could include development of written procedures,Willbeleftto.licenseer.
b.- Application of the' rule to all settlement agreements.
The.second area in which consnenters 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 number of .
commenters believe that the rule should be limited to settlement of complaints ]
611eging violations of Section 210 of the Energy Reorcanization Act. The Commission finds no merit in this criticisni of the proposed rule.
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< of these two findings it is evident thet the Depa'rtment of Labor will be o giving close scrutiny to Section E10 settlement agreements. Licensees will be held responsible for contractor violations of the rule. All settlement agree-ments by contractors will be subject to the restrictiers the Commission is
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adopting today. Licensees may use a variety of methods, such as rotification to licersees of all contractor settlement agreements, piacing requirements it. ;
contracts with individual contractors to prchibit restrictive agreecents, or
_other, procedural mechanisms to assure that their contractors comply with this
- requirement. The Commission is:not-specifying the method or methocs that licensees should use.- The Comission emphasizes, howeve , that licensees will
, be held respons1ble for violations associated with their licensed activities, 1 whether or not they are specifically aware of a contrr,ctcr's falkre to comply with regulatory requirements. The Commission doas not believe that the rule l needs to prescribe procedures whereby contractors will report on, and licensees will monitor, the filing and settlement of Section 210 cases.
t Although the primary motive for these modifications to the proposeo rule-results from the Pollizi decision, a number of commenters identified additier,al~ problems created by the proposed requirement which supper the t /
'moottications.to the proposed rule. The Commission is including below a brief
- summary of those. coments.
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- a. The administrative burden to monitor huldreds of contractors and subcontractors is onerous.
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