ML20217A913

Proposed Rule 10CFR30,40,50,60,61,70,72 & 150, Preserving Free Flow of Info to Commission

ML20217A913
Person / Time
Issue date:	03/15/1990
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:
Shared Package
ML20217A873	List: ML20217A871 ML20217A875 ML20217A882 ML20217A891 ML20217A898 ML20217A906 ML20217A913
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 AD21-2-67, PR-900315, NUDOCS 9011300251
Download: ML20217A913 (48)

Text

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1. 6F8 tCE N 1ECRf!ARY:

DOCKEhNG A S[i<VICI BRANCH

% NUCLEAR REGULATORY C0mlSSION' 10 CFR Parts'30, 40, 50, 60, 61, 70, 72 and.150 mp

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RIN: ' 3150-AD21 '!

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I Preserving the Free Flow of Information to' the Comission  !

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. AGENCY:- Nuclear Regulatory Comission.  !

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ACTION:: Final Rule. .

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SUMMARY

- The Nuclear Regulatory Comnission is revising its rules governing. ,

the: conduct of.all ComissionL licensees and clicense applicants. The ' final i e _., .

rule prohibits the. imposition of conditions'in settlement agreements under ,

Section 210 of the' Energy' Reorganization Act, or in other agreements affecting; p  ; employment, that would prohibit,. restric,.,; or otherwise~ discourage-any.- .i 1

, . employee or former employee from providing the Cosmission with information on potential: violations or other hazardous conditions. This r ile is necessary toi '

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. prohibit the use of provisions which would' inhibit the freeL flow' of 1 L .information to the Comission in-agreements related to' employment. l b ,

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EFFECTIVE.DATE: April 20, 1990. ,

LFOR FURTHER INFORMAT10ti CONTACT: Stuart A. Treby, Assistant-General Counsel,.

Rulemaking"and fuel Cycle Division, Office of the General Counsel, U.S.  ;

Nuclear Regulatory Comission, Washington, DC 20555; Telephone (301). 1 l_ :492-1636. -!

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SUPPLEMENTARYLillFORt1AT 0N: i

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Background l l

l Section'210 of the Energy Reorganization Act of 1974,.as amended, was added as a(new section to that Act:in 1978 (Pub. L.95-601). Section 210-offers? protection;to employees of-a Cosmission licensee, or. of a contractor or d La subcontractor of a.Conmission: licensee or applicant. The protection

- afforded is to'those who have been fired or' discriminated against as .a result .

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of the Lfact that, among other things,:they have testified or given-evidence.on H l

L Lpotential violations, or brought suit under'Section 210'of the Energy Reorgan-: 1 p 4 ization Act.: Employees who-have been oiscriminated against:for raising safety .

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or other issues ~ have the right to file complaints with.the Department.of Labor- '

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E for the purpose of obtaining a remedy for the personal harm caused by.- the-discrimination. Following the filing of a complaint, the Department of Labor

- performs an investigation. If either the employee or the employer is not v

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setisfied with the outcome of the investigation, a hearing can be held tsefore an Adminis'trat'iv'e. Law' Judge, with review by the_ Secretary of Labor. )

The i

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- Secretary of_-Labor can~ issue an order for the_ employee to be rehired, or

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- otherwise compensated if the employee's case is justitied.

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• In. many cases, _ the employee and the employer reach settlement' of the issues-raised'in the Department of Labor proceecing before completion of the formal process and- a finding by the Secretary of Labor. In ger:eral the  !

Cennission supports settlements as they may provide appropri_ ate remedies  !

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to employees without the need for ' litigation.

However, a recent case l has i y

7 brought to th'e Connission's attention the potential for_ settlement l agreerents negotiated under Section 210 to impose restrictions upon the freedom of employees or'former employees protected by Section 210 to testify -;

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or participate 1n-NRC licensing and regulatory. proceedings!cr to otherwise

- provide information on_ potential! violations or other hazardous conditions to-the Commission or the NRC staft. See. Texas Utilities Electric Co., (Comanche -

Fehk~ Steam Electric Station _ Units 1- and 2), CLI-88-12, 28 NRC 605- (1988);

Texas Utilities , ectric Co.,_ (Comanche. Peak Steam Electric Station' Units I l and 2), CL1-89-06.- 29 NRC 348 (1989). The Conunission's follow-up to the j i

above case has confirmed that other.-instances of. questionable restrictions do-' ,

- exist in.a variety of settlement agreements, not limited to Section 210L 1

-i proceedings.:

The Commission has concluded that a Section 210 settlement agreement, or '

any other agreement affecting employment, which restricts the freedom of an employee or. former employee from freely and fully communicating with the

4 Iluclear Regulatory Cemission about potential violations or other hazards falling within NRC's regulatory responsibility is us acceptable. These provisions may have a ct.itling effect on communications about nuclear safety, security, or other matters, and would restrict, impede, or frustrate full and candid disclosure to the Nuclear Regulatory Coarission 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 and therefore

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jeopardize the execution of the Agency's overall statutory duties. The same would be true of other information bearing on NRC's regulatary respons1- '

bilities, for example information regarding security or safeguards issues.

Accordingly, on July 18, 1989 (54 FR 30049), the Consission published a prop 6 sea 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.

Tha NRC has received 43 comments on the proposed rule from a variety of

. Cosmission licensees, private individuals, and inoustry organizatione. A sumar) of those comments and the Commission's responses to those wuents tollows. Before discussing those comments, however, two additional events

have occurred which, along W1th the comments, have resulted in changes In the content of the 'inal rule.

First, on July 28, 1989, the Secretary of Labor issued a decision in a case filed under Section 210 of the Energy Reorganization Act which addressec restrictive settlement agreements. See Polliri v. Gibbs & Hill, Inc.

BMRA-38 (July 18,1589). In that cecision, the Secretary of Lsor found unenforceable a clause in a settlement agreement which had the effect of drying-up charnels of comuriication which were essential for Government agencies to carry out their responsibilities. Specifically of significance for this rulemakirig, the Secretary founo that Department of Labor Administra-tive Law Judges had a duty to review parties' settlement agreements before cisa,issing ch.es.and that a restriction on voluntary appearance as a witness in an NRC proceeding was against public poiicy and, therefore, unenf orceable.

Particularly notable is the f act that the Secretary found the restrictive '

provision .:f the Pn111ri settlemert agreement unenforceable in spite of the i

_ fact that the provision'in question explicitly stated that, other than ppearing 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 Commission has-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' agreements with restrictive clauses. Although i

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6 some licensees were expanding the scope of their reviews and may identify additional agreements in the future, initially more than a dozen agreements were identifiec that contained either restrictive language or questionable 16r.guage concerning the provision of information to the NRC. The responses incluoed not only agreements settling Section 210 complaints, but also other agreements settling law suits in State and Federal Courts. ,

As will be discussed in responding to specific coments ano suggasted changes, the above two events, in combination with the comments received by the Comission, htve resulted in roodifications to the proposed rule, while at the same time confirming the Comission's view that a specific rule concerning settlenent agreements shoulo be adopted.

Sumary of Public Coments Of the 43 comments received by the Consnission on the proposed rule, no

_ one indicated satisf actit.1 with the rule as written. Thirty.six commenters specifically opposed the rule for a variety of reasons. Seven consenters favored the rule subject to'certain modifications. It is noteworthy that virtually all. consnenters indicated their support for the Commission's goal of assuring the free flow of information to the Commission. A sumary of consnents with the Comission's responses appears below.

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1. The Proposee Rule As Dratted Is Much Too Broac in Scope.  !

Almost half the commenters complained that the scope of the rule was much  !

too broad, rencering its implementation both unnecessary and impractical. The two areas most frequently mentionea as being too broadly written were the rule's reference to " contractors ano subcontractors" and tht app 11c6 tion of >

the rule to "all settlerrent agreements." Each of those 1ssues is indivioually addressed below.

a. Application of the rule to contractors and subcontractors.

Connenters that exhibited the most concern for the application of the rule to contractors and subcontractors were materials licensees, such as hospitals. whose overall activities involve only a small percentage of licensed activities. Given the extensive use of contractors in the conduct k of licensed activities, a rule that applied only to conduct by licensees.

_ and not to licensed _ activities carried out on their' behalf by their contractors or subcontractors, would be of little value. Accordingly, the E

rule prohibition is broadly worded to cover all persons conducting licensed activities. '

A separate but related concern is that, as proposed, the rule would require that licensees have procedures to oversee employee / employer agreements for hundreds of contractors and subcontractors that had nothing to do with their 11 cited licensed activities. It is well established in Commission precedent that an applicant or licensee cannot avoid responsibility for compliance with the Atomic Energy Act or the Commission's regulations by

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celegation of performance of t..

license related activities to independent agents or contractors. See Viro 1nia Electric ano Power Company, (North Anna Power l Itation, Units 1 ano 2) ALAB-324, 3 NRC 347 (April 15,1976); Illinois Fewer Company, (Clinton Power Station, Unit 1) LBP-81-61,14 NRC 1735 (December 16, j 1981). In fact, the Comission has specifically noted the responsibility of i

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p4 licensees for the conduct of Weir contractors with respect to cases of

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heressment by contractors of contrector employees. Metropolitan Edison Company et. al. (Three Mile Island Station, Unit 1) CLI-85-2, 21 NRC 282, 329 1 (February 25,1985). 1 j

"herefore, it is not necessary for the Comission to specifically require j licensees to have procedures for assuring that their contractors and subcontractors comply with the Comission's regulations. Enforcement actions l can be, and have been, taken against licensees for the misconouct of their contractors and' subcontractors which results in. violations of the Comission's.

regulations, including violation by contractors of employee discrimination

_ regulations. Thus, the Comission.need not require that formal procedures be developed to monitor contractor 6nd subcontractor activity in order for. )

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-licensees to:be responsible for their contractors' and subcontractors'-

actions, i

The Commission did not intend to create an unwieldy system which would- l 1

require some-licensees performing limited licensed activities to establish a' I system to monitor the employer / employee relations of hundreds of contractors L and subcontractors who are not directly involved in licensed activities, l 1

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I Accordingly, the final rule has been modified to cirectly prchibit agreements L (,

which prohibit, restrict, or otherwise o15 courage an employee from engaging in l

protected activity as defined in the Commission's employee protection regu-laticos. Although the fin 61 rule requires that licensees notify contractors 1 and subcontractors of this regulation's restrictions, the final rule has not retained the recuirement that licensees develop specific procedures to assure {

compliance by contr6ctors or subcontractors. However, the Comnission reenphasizes the preceovnt r.oted above with respect to licensees' responsi-bilities 'for conduct of licenseo activities by their conwactors and subcontractors. The Commission will hold licensees responsible for violations i

of HRC regulatory requirements by contractors and subcontractors performing work related to the activities which are the responsibility of the licensee unoer the applicable statutes, regulations, orders, or licenses. The telection ~of means to ensure that violations do not occur, which could include development of written procedures, will be left to licensees.

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b. Application of the- rule to all settlement agreements..

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The second area in which commenters were concerned with the s' cope of the' .

proposed rule was in its application to all " agreements affecting the-  ;

compensation. -terms, conditions and privileges of employment." A number of.

.commenters believe that the rule should be limited to settlement of complaints alleging violations of Section 210 of the Energy Reorganization Act.. The Commission finds no merit in this criticism of the proposed rule.  ;

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On April 27, 1969, the NRC staft requested nuclear power plant licensees and their contractors, and major nuclear materials and fuel cycle facility licensues, to review all settlement agreements cr other agreements related to j

compensation, terms, condit1cr.s, and privileges of employment to which they were a party for potentially improper restrictive clauses. Although several of the licensees hao not fully completed their review of all such agreements, ,,

initial responses to the (cmission's inouiry identiftec more then a dozen '

agreements that contained 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 complaints. They l

contained several settlements of cases ftied on a variety of grounds before 1 State and Federal Courts. The Commission has concluded that these agreements-adeoustely comonstrate the potential f or impeding the flow of information to

. the Commission through avenues other than S'ection 210 agreements. The  !

Commission is, therefore, maintaining in the final rule the application of its j prohibitions to all agreements affecting the compensation, terms, conditions, and privileges of employment.

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2. - The Rule Is Unnecessary Because It Is Redundant. 1 i

Commenters advancing this position generally cited the already existing:

p restrictions in the Commission's regulations concerning Section 210 of the

- Energy Reorganization Act. These'incluse the requirement in 10 CFR Part.19< i that a " Form 3" be posted at all work sites informing employees of their right'-

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to bring safety concerns to the ARC anc the requirement in 10 CFR Port 21 l creating an obligation on directors and responsibir officers of licensees eno vencors to report defects to the ilRC. The conwenters beiteve that it would be i

redundant to acd a restriction on settlement agreements to the regulations.

The courts have not esplicitly addressed the issue of whether Section 210 of the Energy Recrganization Act would prohibit restr1ctive settlement i 1

agreements and the Commission's own regulations co not specifically accress ,

the issue'either. In the Pollizi case the Secretary of Labor did not specifically find that the restrictive provisions in the settlement agreements violatto Section 210. Rather, the Secretary indicated that the agreement's

- provisions were invalid because the provision was against public policy anc i

was, therefore,-unenforceable. See Pollizi' v._ Gibbs & Hill, Inc. , 87. ERA-38,  :

Slip'0 pinion at 7 (July 18,1989). In addition, based on the number of agreements already identified which contain questionable provisions, it would  !

not appear that current regulations have prevented potentially improper

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agreements from being' executed. _

1 Rather than' relying on the judgment of a variety of individuals  ;

- attempting to determine which clauses might violate public policy, the

- Commission believes it is prudent to specifically prohibit by regulation all settlement ' agreements or other agreements affecting the compensation, terms, concitions and privileges of employment from restricting employees from-bringing safetyLconcerns to the attention of the NRC.

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3.

Coments Concerning The Reporting Ana Monitoring Aspects Of The Proposed Rule.

A number of comenters raised problems with the requirements in the proposec rule that contractors and subcontractors inform licensees of each Section 210 complaint filed against the contractor or subcontractor, end that the licensee or license 6pplicant have prior review of Section 210 settlement agreenents.

Comenters generally felt that this procedure was unnecessary and would make it more difficult to settle cases. Given that settlements are generally encourageo, actions traking it more difficult to settle cases would I be detrimental to all parties involved in these disputes.

The Comission has determined that,,as a result of the Secretary of I-  :

Labors' cecision in the Polliti case, these requirements should be dropped.

The reason for the Comission dropping this aspect of the proposed rule priuarily results f rom two parts of the Polliri decision. First, the

_ Secretary in that case reiterated a decision in Funcko and Yunker v. Georcia Power Co., 89-ERA-9,10 (Secretary's Order to Submit Settlement Agreement issued March 23,1989,at2),thatitwaserrorforanAdministrativeLaw Junge in a Department of Labor case to dismiss a case without reviewing a proposed settlement agreement. Polliri slip op at 2. In addition, the' Secretary found that an agreement that restricted voluntary participation in NRC proceedings, even though it specifically noted that Mr. Po11121 was not.1n

'any manner restricted from providing information to the Commission on safety concerns, was against public policy and would not be enforceable. As a result l

of these two fint.1ngs it is evident that the Department of Labor will be giving close scratiny to Section 210 settlement agreements. Licensees will be held responsible for contractor violations of the rule. All settlement agree-ments by contractors will be subject to the restrictions the Commission is ndopting today. Licensees may use a variety of methods, such as notification

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to licensees of all contractor settlement agreements, placing requirements in contracts with Inolvidual contractors to prohibit restrictive agreements, or other procedural mechanists to assure that their contractors comply with this requiremert. The Commission is nnt specifying the method or methoos that licensees should use. The Commission emphasizes, however, that licensees will be held responsible for violations associated with their licensea activities, whether or not they are specifically aware of a contractor's failure to comply with regulatory requirements.

The Commission does not believe that the rule 1

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- needs to prescribe procedures whereby contractors will report on, and licensees will itor, the filing and settlement of Section 210 cases.

,, Although the primary motive for these modifications to the proposed rule results from the Folli:1 decision, a number of commenters identified

- acottional problems created by the proposed requirement which support the mottifications to the proposed rule. The Commission is including below a brief .

summary of those comments.

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a. The administrative burden to monitor hundreds of contractors and subcontractors is onerous.

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b. Small contractors may cease nuclear work rathi'r than taking on the sco1tional administrative burden.

The Commission has removed the most buroensome administrative aspects of the proposed rule. Although the Commission does not necessarily agree with some commenters views of the magnitude and affect of the burden that would '

have been imposed under the proposed rule, the Pu11121 decision reouces the need to impose a monitoring burden on licensees and license applicants, or a reporting requirement on contractors and subcontractors, with respect to s' ,

Section 210 settlement agreements. However, the Commissioi ra-trss licensees t

and license applicants that the final rule will prohibi* greements which

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restrict the bringing of safety or other concerns to e AC. They are still responsible for. assuring that regulated activity is pe riormed in accordance with Commission regulatory requirements. The hiring of contractors or subcontractors to perform work will not relieve licensees or license applicants- of that burden.

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c. The NRC is exceeding its authority by forcing licensees to become involved in third party contracts.

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d. The requirement that licensees and license applicants become involved i

in third party contracts will result in licensees fully litigating claims rather then settling claims.- This will be detrimental to the employee.

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e. It is iriSppropriate to require licensees to inttuce into contractor wployee nepotiations. 1 The Comission does not agree that it is beyond its authority or it is improper to require licensees to be responsible for the actions of third parties, which they directly or incirectly cause tu be involved in licensed i

activity. As noted previously, it is well' established that licensees and license applicants cannot delegate away their responsibility to comply with Commission requirenierits for performance ot' licensed activities. The Commis-

$1on coes not believe that the final rule intrudes into third party activitics 9 such that it will significantly, if at all, affect the ability of employees to obtain settlenients in Section 210 or similar cases.

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Contractors and subcontractors who are also licensees should not be

- covered by the rule's monitoring requirements because they will already be-covered by the principal licensee.

I The Comenission does not agree that contractors or subcontractors who are '

also licensees should have a reduced burden by virtue of the f act that they .

are being employed by another licensee. The final rule has eliminated tht' requirements for licensees to review settlement agreements in Section 210  ;  !

cases prior.to their being executed. Nevertheless, licensees are responsible g for assuring that regulated activities they are perforining under th'eir license

' ere in accordance with NRC regulatory requirements and this responsibility

I cannot be celegated away. The f6ct that several entities within the chain of responsibility may be licensees does not relieve any of them from the responsibility of assuring that activities performed under their licenses are performed in accordance with NRC regulatory requirements.

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Contractor working for multiple licensees might require multiple approvals to execute a settlement agreement.

The Comission 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 hindrance to an employee obtaining a satisfactory settlement. The Commission's desire was not i to restrict the ability of employees to reach satisfactory settlement

. agreements vith their employers. The Commission believes the objective t,f assuring that settlement agreements do not contain improper restrictions on -

- employees brnging information to th_e NRC can be obtained without the need for '

multiple entities reviewing Section 210 setilement agreements. The final rule has eliminated-the requirement that licensees have a prior review of their contractors' Section 210 settlement agreements..

4 One Instance Is Not A Sufficient Basis For Adopting - A Rule. '

Several commenters believed that the one instance that was noted by the Commission in the proposed rulemaking was not sufficient to justify modifying l

l the regulations. In fact, at the time the proposeo regulation was publishec, the Comission had already learred that other agreements, appartntly containing restrictive clauses, might have been executed. Concurrently with the proposed rulemaking, nuclear power plant licensees, their contractors, ano major nuclear materials and fuel cycle licensees were requested pursuant to an i

April 27,1989, letter from the NRC staff to review existing agreements to '

determine if they contained possibly 1mpermissible restrictions. As a result of that review licensees initially identifies more than a cozen additional )

agreements with language which could be Interpreted as restricting

. ccmunications.with the ARC.

The Comission believes that the information received as a result of the. l i

staff's April 27, 1989, letter confirns ,the Comission's original belief that. l the problem of restrictive settlement agreements is serious encugh to be-directly addressed in our regulatinns.

5. The Proposeo kuie Coulo Abrogate Proprietary Agreements.

The Conslission understands this cossnent to have been concernea with the rule's provisions requiring' licensees to review proposer! settlement agreements of their contractors and with concerns about employe: communicatium nith the -

NRC. The NRC has regulations to specifically protect propdetary information received by the Commission. See 10 CFR 2.790, 9.17, and 9.104 Thus, the Comission sees little merit to the concern that employees must be made to-

follow certain procedures before they can bring proprietcry information to the Comm'ssion. In fact, such a restriction would be likely to inhibit an emp4cyte from ccming to the hRC. With respect to communications with the NRC, employers should do no more than require employees to inform the NRC that information being provided may be proprietary so that the NRC can appropri-ately handle the informatinn to prevent any inappropriate public disclosure.

With respect to concern over 11cessees reviewing contractor / employee settlement agreements that n.ny contain proprietary information, the final rule has eliminated the specific rtouireme'et for such reviewt. 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 NRC's view, assuring free flow of safety information

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overrides commenters concerns about disclosure of proprietary information to licensees.

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6. A Backfit Analysis Is Required.

As originally draf ted,-the proposed ruite. specifically required that

- licensees develop procedures to ensure that licensees' contractors and subcontractors did not place-in settlement agreements any restrictions on-employees coming to the NRC with inforwation. This included specifically requiring that licensees have procedures to require contractors to notify them if a Section 210 complaint was filed with the Department of Labor and that any' 4

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proposed settlement be forwarcea to the licensee prior to its execution.

Several ccmmenters beiieved that this requirement for changes in procedures amounted to a backfit requiring a backfit analysis. Given the Secretary of Labor's oecision in the Pollizi case that such agreements are against public '

policy, there is some questinn as to whether the proposed regulation would have imposed a new reovirement on licensees or contractors. In any event, the final rule has elimindtea any specific requirement for procedural changes.

The final rule cecleres, consistent with the Pollizi decision, that agreemerts which place restrictions on employees communicating information with the NRC are prohfoitec. Licensees may or may not choose to modify existing procedures to essure compliance with the final rule's requirements.

• Some licensees may,-in f act, already have procecures in place addressing these -

issues as a result of the staff's April 27, 1989, letter notifying them of the NRC's concerns. It is for licensees themselves to decice how the prohibition on restrictive agreements is to be implementec.

With the requirement' to develop procedures removec, the rule merely ,

prohibits potential barriers to communication with NRC. As such it does not -

- fall within the definition of backfit in i 50.109. The backfit rule does not

. apply to NRC information requests (see 5 50.54(f)) anc it would be anomalous to apply 'the backfit rule to similar NRC measures to ensure that information is; brought to its attention..

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7. The Ccmmission Shculo issue A Policy Statement Instead Of A Rule.

U One commenter suggested that a policy statement was sufficient to accomplish the Commission's purposes ano that the rule was unnecessary. The Commission coes not agree that a policy statement would be appropriate in this  ;

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instance. Th'.s is not an area in which the Commission needs to gain experie:.ce with application of a policy statement before a final rule can be

.ceveicped., The Commission is net aware of any other reason that might make a policy statement prefer 6ble to a rule in this case. The Commission concludes l

I thet it is apprcrriate to proceed with formal rulenaking to dooress this issue.

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e P. Ada Language To The flRC Form 3 Concerning Settlenant Agreements. ~

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-Under 10 CFR Part 19, licensees are required to post an itRC Form 3-at #11.

work sites. This form informs employees of their rights ano protections in bringing safety information to the NRC.. One commenter has suggested that the l NRC add' language to this form telling workers that. settlement agreements may not impose restrictions on their bringing safety information to the NRC. The HRC will consioer adaing_such language'to the NRC Form 3 in future revisions of the form to' reflect' the restrictions contained in this rulemaking.

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The Proposed Rule kculd Interfere With The Duty Of Emplev- 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 promptly act to address these issues. Thus, if an l employee lacks conficence in his management and feels compelled to come to the l&C first, e delay in addressing a safety issue will inevitably result, however,Jin those cases where employees do not feel that they can talk about a safety problem with their manecement, they must be free of any restriction which woulo prevent their raising the issue with the NRC. The proposed rule r

does not introduce any urwarranted intrusion into the employer / employee relationship. The rule does not prchibit employees from going to management ,

i' first with their safety concerns. It is up to licensees to create a work

. atmosphere in which employees feel confident in bringing safety concerns cirectly to their nanagement.

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10. Responses.To The Questions In _The P*oposed Rule. '

The majority of commenters did not specifically' comment on the two

_q uestions posed by the Commission in the proposeo rule.

To a large extent their comments en the proposed rule itself-superseded any need to specifically

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[ accress the questions preposed. The Comission sunanarizes below the specific comments that were received on the questions presented in the proposed rule, a.

Should the rule prohibit all restrictions on information to the

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Comission, or should limitations on an incividual appearing before a Comission adjucicatory beard (e.g., requiring an individual to resist a subpoena) be permissible as lorg as other evenues for previoing information to the Ccmission are availetle?

L Five comenters believeo that some restrictions should be allowed if there.ts at least one avenue open to communicate with the NRC. Four comenters ' believed that

. o restrictions on communications should be allowed.

The Cosa:15sion believes that no restrictions on bringing information to the Comission should be allowed. In the Po11121 decision the Secretary of-Labor noted that, even when a provision specifically included a statement that

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safety information coulo b' e brought to the NRC's attention, restrictions on

. voluntarily ~ appearing as a witness in NRC proceedings would be against public l

- policy.

- Given the numerous possible restrictions that could be put into settlement agreements, it would be difficult, if not-impossible, to design '

. guicance which ~could differentiate between a "gooc" restriction and a " bad" restriction, even if. the Commission were inclined to ao so. The Commission

. has chosen to ban all restrictions on coming to the NRC with information bearing on its regulatory responsibilities rather than engaging in that attempt.

W

_ _ _ _ _ - - - ~ ^ - --

J

. 1 i

22 i l

b.

Should the rule impose er: aeditional requirerr.ent that licensees ano i

license applicants must ensure that all agreerrants affecting employment,  !

t 4 cluding thcse of their contractors or subcontractors, ccntain a provision stating that the agreerrent in no way restricts the employee f rom providing Infornation to the Commission? 1' Of the comments receiseo on this question, four coronenters opposed

{

rf. Quiring an-affirmatise statement ir all settlement agreements ano four )

l t.ommenters favored requiring such a statement. For the most part, those l opposing the requirettert felt it wds unduly burcensome ano would unnecessarily interfere with the employee 4mployer relatienship. Those in favor of this requirement felt that it would be beneficial in clarifying for employees what their rights were and it would also remove any ambiguity caused by other parts '

of the settlernent agreement. '

The Commission has decided not to require a specific clause in settlement

- - agreements.

The utility of such a flause 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 make the restrictive clause in the Pollizi. case acceptable.

In addition, given that the Consnission already ,

requires that employees be notifiea 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. gained by requiring such a clause in settlement agreements would justify this type of intrusion-into the employer / employee relationship.

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u . _. . _ . _ ~ _ _ _ . . __ , . . __ .--

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12. Additionai Cornnents And Pevisions. '

j I

One corrrrenter provided a detaiito discussion of the Comission's policies with respect to enforcernent of the current NRC regulations on employee protection.

Those consnents, although related, go beyond the scope of the spec 111e 6ction being considered in this-rulemaking. Hewever, those specific consnents have teen forwarced to the NRC Of fice of Enforcement for its consideration. ,

In accition, comments it:cluded suggestions to file all settlement p egreements in the docket for the facility in question; to recuire that the ban on restrictions apply to comunications by an employee with anyone, nct Just

[, {

HRC; and to require that all future contracts by a licensee with contractors t.

-or subcontractors contain contractual _obitgations to' prohibit restrictive agreenients .

~

The Comission has considered these. suggestions and has concluoed that .

_ the most efficient methea of achieving the goal of the rulemaking, which '

involves the minimum necessary intrusion on the employee / employer r l

and the relationship between licensees and their-contractors or subcontrac-tors, is to simply prohibit provisions in a. settlement agreement with an I.

l employee which would in any way restrict that employee frosi coming to' the N with safety information bearing on NRC regulatory responsibilities, The Commission is not convinced that requiring the filing of agreements in the NRC *I docket files, prohibiting restrictions on communications with entities other

G e 25 -

than the HRC, or requiring specific clauses in licensee /cuntractor contracts would significartly improve the Commission's ability to achieve the goals of this rulemaking.

The last line of the firtt paragraph being added to Parts 30, 40, 50, 60, 61, 70, eno 72 of the regulations has been mocified by referencing the cefinition of " protected ectivity" which appears in each part of the regulations.

This was ucne to assure that the en.ployee protection provisions ccnsistently protect the some employee conduct.

Finally, in publishing the proposed rule, comparable revisions to 10 CFR Part 61 were inadvertently not included in the proposed rule. Part 61 contains, at 561.9, comparable restrictions with respect to employee protections as appear in the other Parts' of the Consnission's regulations.

Accordingly, the appropriate revisions to Part 61 are incluoed in this final rulera king.

-. ~

' Adoitional Comments of Consissioner Curtiss I While ! am reluctantly supporting the approach adopted in this rule. -

particularly in view of the'f act that the Department of Labor has' adopted- the j argument that the NRC championed in our letter of May-3,1989, I nevertheless l remain concerned about the potential precedential scope of thi.t approach and of the rationale that underpins the. final rule. Specifically, I am not persunded that a logical case has been -- or can be - made to suppori. the  !

% , ---, , 7r,, , , . ,. . - , .

.. _ _ _ _ ._ _ _ _ . ~ . _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ .

l

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distinction between settlement agretments arising out of an employer-empipy relationship ano settlement agreements where no employer-employee rela\

exists.

If we are troubled by the imposition of any restriction on an individual's right to communicate with the Commission -- even where the >

individual nevertheless retains the right to communicate in some manner with t

the Commission -- the fact that those restrictions 6 rise out of the s of an empipytr-employee dispute seems to me to be irrtlevant to the ultimate objective that we are seeking to accomplish in this rule -- preserving the Commission's ability, untncumbered, to obtain inforr;tton on health and safety m6tters. 1/ Indeed, in view or the decision th.it the Commission has reached l here, I find it most improbable that the Commission would -- or could -- ,

accept a settlement agreement that restricted in any way an individual's '

ability to communicate with the Commission, on the ground th6t the settlement L t agreement did not involve an employer-empidyne relationship. In short, the logic of this rule appears to compel the conclusion that any restriction on an '

incividual's right-to communicate with the-Commission contained in a settlement agreement - whether or not an 6mpipyer-empipyee re16tionship exists -- is unacceptable. While this rule, by its terms, coes not address this

.s U 1/

If the Commission is seeking to ensure that,the channels of communication for health and safety .inforretion remain unencumbered, the fact that one individual is an emp1pyee and another is not should have no bearing on whether we would countenance any restrictions on the communication of such information to the Commission, even though it may ultimately turn out that the employee's-information.is more accurate or valuable because 1 of the special access that such an individual might have.

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i situation, we revertheless shculd recognize that our action here roves us in that cirectler..

1

. Environmental Impact: Categorical Exclusion I l

i I

The i:RC has de%rmined that this final rule falls within the scope of the actions cescribec in categoriedi exclusion 10 CFR 51.10(d).

This amendment l provides the Commission with the ebility to take enforcement action for agreements which have air ency been declared b to ' e against public policy.

Therefore, neither en environrtental impact statement nor an environmental assessment has been prepared for this rule.

Paperwork Recuction Act Statement This final rule does not contain a riew or amended information requirement. subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et

- seq.). ~

~

Existing requirements were_ approved by the Office of Management ano-Budget approval numbers 3150-0017, 3150-0020, 3150-0011, 3150-0127, 3150-0009, 3150-0132, and 3150-0032, t

F Pegulatory Analysis The fina'l rule prohibits provisions in agreements affecting =Lployment-that restrict-emoloyees from providing inforination to the Comission. The

f l .

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objtetives of the final rule cre to ensure that such agreements do not restrict the free flow of safety or other information to the Commission and -

that the intent of Section 210 of the Energy Reorganization Act is not frustrated.

i The Ocamission believes that the clearest and most effective i

method of achieving these objectives, 6rd avoiding potential uncertainty and conflict regarding the interpretation cf specific provisions, is to prohibit provisiens in these agreements th6t in any way restrict the flow of information to the Comnission, the Commission's aojucicatory boards, or the L

NRC staff.

The citernative of imposing an additional requirement on licensees and licerse applicants to require any agreement affecting employment to i include a provision statingLthat the agreement in no way restricts the employee from providing information to the Commission was rejected as unnecessary to achieve the objectives of,the rule.

The final rule will not j impose any substantial costs on licensees or license applicants.

Regulatory Flexibility Certification

._. ~

?

In accordance with- the Regulatory Flexib'ility Act of 1980 (5 U.S.C.

605(b)), the Commission certifies that this rule does not have a significant economic impact on a. substantial number of small entities. . Although- the proposeo rule would have imposeo procedural requirements on a wide range of Commissinn licensees of varying size, the final rule prohibits agreements that restrict employees who are performing or have performed work relateo to

-licensed activities from providing information to the Commission on potential violations or hazards. The final rule does not_ require licensees to develop

.s

-, - , . n. . , . - - - -

I e

cettiled procecures for review of all centractor and subcontractor settlement agreements.

The Corrmission believes that the final rule does not impose a significant economic impact on Comission licensees who would be consicered <

"small entities."

Backfit Analysis The flRC has ceterminec that the backfit rule,10 CFR 50.109, does not apply to this final rule ano, therefore, that a backfit analysis is not

{

recuired for this final rule because these amendments do not involve any provisions 'which would in. pose backfits as defined in 10 CFR 50.109(a)(1).

i l

List of Subjects ,

10 CFR Part 30

- --- b Byproduct material, Government contracts, Intergovernmental relations, Isotopes Nuclear materials' Penalty, Raciation protection, Repurting and

- recordkeeping requirements.

i 10 CFR Part 40 Government contracts,: Hazarcous materials - transportation, Nuclear '

materials, Penalty, Reporting and recordkeeping requirements, Source material, Uranium. i

~'

C CFR Part 50 Antitrust, Classified information, Fire protection, Inccrporation by reference, Intergovernmental relations, huclear power pl6nts ano reactors, Fenalty, Radiation protection, Reactor siting criteria, Reporting ana recorokeeping reovirements.

-10 CFR Part 60 '

High-level waste, Nuclear power plants and reactors, Nuclear raterials, 1

l Fenalty, Reporting and reccrdkeeping requirements, Waste treatment ano disposal.

D

10 CFR Part 61 Low-level waste, Nuclear materials, Penalty, Reporting and recorakeeping

~~

requirements,Wastetreatmentanddisposal, it 10 CFR Part 70-1 i

Hazarocus ~ materials - transportation, Nuclear materials, Packaging and containers, Penalty,' Radiation protection,= Reporting and recordkeeping requirements,- Scientific eoutpment, Security measures, Special nuclear-material.

10 CFR P6ct 72 Y Manpower train 1rg programs, Nuclear materials, Occupational safety and health, Reporting and recorckeeping recuirements, Security ineasures, Spent fuel.

10 CFR Part 150

~

-Hazarcous traterials - transportation, Intergovernmental relations.

Nuclear matert41s, Penalty, Reporting and recordkeeping requirements, Security measures, Source naterial, Special nuclear material.

For the reasons set out in the preamble ano under the authority of the Atomic Energy. Act of 1954, as amended,= the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 552 and 553, the NRC is acopting'the following 6niendments to -.10 CFR Parts 30, 40, 50, 60, 61, 70, 72 and 150.

PART. 30 - RULES OF GENERAL APPLICABILITY TO DOMESTIC LICENS ,

MATERIAL-l 1

=

i 1.

The authority citation for Part 30 is reviseo to read as follows: j AUTHORITY:

Sees. 81, 82~ 161,182,183,186, 68 Stat. 935, 948, 3

i 953, 954, 955, as amended. sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2111, i

2112, .2201, 223?. 2233, 2236, 2282); secs. 201, as amended, 202, 206, 88 Stat.

' 1242, as amended, 1244,1246_ (42 U.S.C. 5841, 5842, 5846).

~

! s 1

.Section 30.7 also issued under Pub.-l. 95 601, sec.10, 92 Stat. 2951 (42 U.S.C. 5851). Section 30.34(b) also issuea under sec.184, 68 Stat. 954, as  :

1 amendec (42 U.S.C. 22:4). Section 30.61 also issued uncer sec.187, 68 Stat.

955(42U.S.C.2237).

j For the purposes nf sec. 223, 66 Stat. 958, as amended (42 U.S.C. 2273); j

'll:30.3, 30.7(g), 30.34(b), (c) and (f), 30.41(a) and (c), and 30.53 are issut #

under secs. = 161b,1611, 1 and 1610, (8 Stat. 948, S49, and 950 as amended (42 U.S.C.

2201(b), 2201(i), are 2201(o)); ano il 30.6, 30.9, 30.36, 30.51, 30.52, 30.55, and'30.56(b) anc (c) are issuco under sec. 1610, 68 Stat. 950, as amended (42 U.S,C.L2201(o)'.

2.

l'n i 30.7, the introductory text'ot .vagraph (c) is revised and a Inew paragraph (g) is 'adced to read as follows:

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[ 6 30.7 Employee protection.-

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i (c) A violation uf paragraph (a) or paragraph (g) of this section by a j

(Commission licensee, en applicant for a Cosaission license, or'a contractor or l

subcontractor of a Connission licensee or applicant may be grcunds for---

n :n 1 j * * * .-

• i s

(g) No agreement affecting t'he compensation, terms, conditions and-g privileges of employment, iPeluding an agreenct to settle.a complaint filed W. , ,

4

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4 br a-employee with the Dept.rtr.ent of Labor pursuant to Section 210 of the Ener9y Reorganiz6acu Act.of 1974, may contain any provision which would  !

i pronibit,; restrict, or otherwise oiscourage, 6n employee from participating in protetteo activity as defineo in paragraph (a)(1) of this section, includin9, I

'but-not 11mitea to, providing information to the NRC on potenti61 violations

,4

. or other matters within NPC's reguiatory responsibilities, y ,

PART 40 - COMESTIC LICEKSING OF SOURCE MATERIAL

~

q 3.

The' authority citation for Part 40 is revised to reso as follows:

1 M'THORITY: - Sets.: 62, 63, 64, 65, 81,161,182,183,186, 68LStat. 932, j 1

933,:935,_948,-953, 954, 955, as amendeo, secs.11e(2), 83, 84, Pub. L. .95-604, 92: Stat. 3033, as amended.-3039, sec. 234, 83 Stat. 444, as amenced

(

42 U.S.C. ' 2014(e)(2). 2092, 2093, 2094, 2095, 2111, 2113, 2114,. 2201, ~ 2232, j 2233, 2236,. 2282); ser. 274, Pub. L.~86-373, 73 Stat. 688 (42 U.S.C; 2021);-

g secs. 201', as emend d,, 202, 206, 88 Stat.11242, as ' amended,- 1244,,1246'(42 '

U.S.C. - 5841, 58G, .5846); sec. 275, 92 Stat. 3021, as emended by Pub. L.' ; ' '

(

( 1 97-415, 96 Stat. 2067 (42 U.S.C. 2022).

Section .40.7 also . issued under Pub.- L.95-601, sec.10,'92 Stat. 2951 (42 ' j (U. sic. 5851). Section 40.31(g). also issued under sec.122, 68 Stat. 939 (42 U.S.C. 2152). Sectioni40;46 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 40.71 also issued under sec.187, 68_ Stat.

' 955(42U.S.C.'2237).

4 1

. j -

For the purposes of sec. 223, 68 Stat. 958, as amended-(42 U.S.C. 2273); ,

5540.3, 40.7(g), 40.25(d)(1)-(3), 40.35(a)-(d) and (f), 40.41(b) and (c),-

j i

40.46, 40.51(a) ano (c), eno 40.63 are issued under sec. 161b, 161f ano 1610 ,

l 66: Stat.' 948, 949, ano 950 as emendee (42 U.S.C. 2201(b), 2201(1), and 2201(o)); Land $l40.5, 40.9, 40.25(c), (d)(3), and (4), 40.26(c)(2), 40.35(e);

"' 40.a2. 40.61, 40.62, *0.64, and 40.65 are issued under sec. 161c, 68 Stat.

950, as amenced-(42 U.S.C. 2201(c)).

-i 4.

'In.i 40.7,-the introductory text of paragraph (c) 1s revised and a q

new paragraph (g) is added to read as folicws:

~

i l'40.7.- Employee. protection.

~

(c)f A violation cf paragraph (a) or paragraph (g) of this section by a- !

- , ~

.Comission licensee, an applicant for a Comission license, or:a contractor or -

subcontractor of a Comission' licensee- or ' applicant may be grounds for--

]

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• * , , ., j

'(g) No ~ agreement affecting the compensation,' terms, conditions and

-pr v i i ileges of; employment, including 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, may contain any provision which would prohibit, restrict, or otherwise oiscourage, an employee from participating .in s

.._. _ ~_ _ _ _ - .

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(. T t

5 protected activity as otfined in paragraph (a)(1) of this section, including, but not. linited to, proWolng information. to the NRC on potential violhtlons J or'other matters within NRC's regul6 tory respcnsibilities.

I PART 50 -.00MESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES l

-5. .The authority r.itstion for Part 50 is revised to reae as follows:

1 c ia E

. AUTHORITY: Secs 102, 103, 104, 105, 161, 182, 183, 186, 169, 68 Stat. I s -

936, 937, 938, 948, 953, 954, 955, 956, as amended.:sec. 234, 83 Stat. 1244,

3. as'amenceo (42.U.S.C. 2132, 2133, 2134, 2135, 2201, 2232, 2233, 2236, 2439, 1282); secs. 201, as amended, 202; 206, 88' Stat. 1242, as amended.. 1244, 1246  ;

-(42 U.S.C.LS841, 5842, 5846).

j Section 50.7 also issued under Pub.' L.- 95-601, sec.10, 92 Stat. 2951 (42 <

U.S.C. 5851). Section 5.0.10 also issued under secs.101,.185, .68 Stat. 936,

^955, as' amendeo' (42 0.S.C. ' 2131, 2235); sec.102, Pub. L.91-190,= 83 Stat. 853  ;

1 ,

o(42 U.S.C. 4332). Set.tions 50.13' .'50.54(dd). and 50;103 also. issueo uncer sec. 108,f68 Stat.-939,'as amended (42 U.S.C.-2138). Sections 50.23,-50.35,'50.55, i :and 50.56 also issued under sec.185,'68 Stat.- 055 (42 U.S.C. 2235)1 Sections

-)

50.33a,' 50.55a -and Appendix Q also issued under sec.102, Pub. L.91-190; 83 I l'.

Stat =. 853 (42 U.S.C. 4332). Sections 50.34 and 50.54 also issueo under sec. >

204. 88 Stat. :1245 (42 U.S.C. 5844).. Sections 50.58,.50.91, and 50.92 also J

, issued under Pub. L.= 97-415,- 96 Stat. 2073 -(42 U.S.C. 2239). Section 50.78 i also:1ssued unoer sec.122, 68 Stat. 039 (42 U.S.C. 2152). Sections 50.80 l

l l

1 .

1 1

'through 50.81 aisc issued under sec. 18d', 66 Stat. 954, as amended (42 U.S.C.

- 2234).~ Appendix. F also issued unoer sec.187, 68. Stat. 955 (42 U.S.C. 2237).

For!the purposes of:sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273);

il50.7(f) 50.4E(a) and (b), and 50.54(c) c.re issued unoer sec.161b,1611, and 161n, 68 Stat. 948. 949,. and 950 as amended (42 U.S.C. 2201(b), 2201(1),

i and 2201(o)); il 50.7(a), 50.10(a)-(c), 50.34(a) and (3), 50.44(a)-(c), j >

E0.46(a) ~ ano (b),- 50.47(b), 50.48(a), (c), (d), ano (e), 50.49(a),- 50.54(a),

q (1), (1)(1), (1)-(n), (p), (q), (t), (v), and (y), 50.55(f), 50.55a(a),

(c)-(e), (g), er.d '(h),- 50.5S(c), 50.60(a), 50.62(c), 50.64(b), and 50.80(a) and-(b)are1ssuedundersecf 1611, 68 Stat. 949 as amended (42 U.S.C.

2201(1));; and il50.49(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),150.73(a) and -(b), 50.74, 50.78_, and 50.90 are issued under sec. l,

.1610,.68 Stat.950,asamended(42U.S.C.2201(o)).

1 1

6.- In-l 50.7, the introouctory text of paragraph-(c) 1s revised and a

, U -

new paragraph (f)'is acded to read ai follows:-.

1 l

75 50.7_ Employee protection, t 1

y .

j i

(c) A violation of, paragraph (a) or paragraph (f) of this section by a d Comission111censee, an applicant for a Comission license, or a contractor or

' subcontractor of a Comission licensee or applicant may be grounds for--

1

'$c-t l l  :

(f) No agreement affecting-the compensation, terms, conditions and privileges of employment, inciuding 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, may contain any provision which would y

. prohibit,. restrict, or ctherwise discourage, en employee from participating in f t

-protected activity as defined in paragraph (a)(1) of this section, inclucing, but net limited to, providing information to the.NRC on potential 41olations-

[ ,

.-urictner matters within NRC's regulatory responsibilities.

1.

l

. PART 60 - DISPOSAL. OF'HIGH-LEVEL RADIO 4CTIVE WASTES IN GEOLOGIC RE s

7. Th'e authority citation for Part 60 is revised to read as follows:

h , ,

1 1

L

~

I AUTHORITY: Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat. 929, '

, :930,932;933,-935,948,ES3,954,asamended:(42U.S.C.2071,2073,2092, t L

p 2093 2095, 2111, 2201, 2232,L 2233); secs. '202, 206, 88 Stat.1244,1246 l(42,

-i U.S.C. 5842, 5846); . secs.10 and 14, Pub. C 95-601, 92 Stat. 2951 (42 U.S.C.

[

2 L 2021a, and 5851); se::.102, Pub. L.91-190, 83 Stat. 853 (4? U.S.C. 4332);

q l

g secs.114, = 121. Pub. L.97-425, 96 Stat. 2213g, 2228,- as amended (42 U.S.C.

10134,.10141).

-f 5

, _f ,.

4

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-For the purposes of sec. '223, 68 Stat. 950, as-amended (4? U.S.C. 2273); l 5660.9(f), 60,10, 60.71 to 60.75 are issued under secs.1611 and'161o, 68' Stat. 949 ano 950, as . mended (42 U.S.C. 2201(i) and 2201(o)).

q

8. In l' 60.9, the introductory text of paragraph (c) is revised and a

- new p6ragraph (f) is added to read as follows:' J i

i 60.9

Employee protection.

i r

li

(~c) A violation of-paragraph (a) o'r paragraph (f) of this section by a

- Consission licensee, an applicant'for a Comission lit.ense, or a contractur or

subcontractor'ofia' Cosenssion licensee or n'pplicant may be grounds for-- H 1

1- y l:

' l s  :(f) No-agreement' affectinglthe compensation', terms,'conottions 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:

p

_. Energy Reorganization Act of 1974,Lmay contain any provision which would -

+ -

prohibit, restrict, or 'otherwise discourage,'an empluyee from participating'in

. 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 withir, ARC's regulatory responsibilities. l I<

1

• lb .

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t.

39 -i

, 1 a

PART 61 - LICENSlhG' REQUIREMENTS FOR ..,AND DISPOSAL _ OF RADIDACTIVE WAS L

9. The' authority citation for Part 61 is revised to r66d as follows: '

s AUTHORITY: ' Secs. 53, 57, 62, 63, 65, 81,161,182,183, 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 (4211.5.C. '

.5842, 5846); secs. 10 and 14, Pub. L.95-601. 92 Stat. 2951 (42 U.S.C. 2021a '

-ano5851). i g J: r Fo' /the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273;.  ;

l, Tables' 1 anc .2,; 5 561.3, 61.9(f), 61.24, 61.25, 61.27(a), 61.41_ through 61.43,

1. q

8. 61.52, 61.53, 61.55, 61.56. and.61.01.through 61.63lare-issued under secs.-

! i 161b,;161f and-1610,.68 Stat. 948, 949, and 950 as amendec (42 ll.S.C.-

, I E "

' 2201(b), 2201(1) ano 2201(o)); !!61.Sa, 61.10 through 161.16, 61.?4 and 61 80_ .

~

H iare issueo'under sec.1610, 68. Stat. 950, es amended (42 U.S.C.-'2201 (o)).

ia.

[ ', --I ~

.10.'

ln

l 61.9, th'etintrbductory text of. paragraph (c)11s revised and EU L,o )

,ainew paragraph.(f) isJ added1to read as'follows: . ,

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(, '

l$61.9f.Employeeprotection. >

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. . . . . ~ .

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' , (c) A' violation of paragraph (a)for paragraph (f) of this section by a Commissic.n licensee, an applicant .for a Commission license, or a contractor or subcontractor-of a Commission licensee or applicant may be grounds for--

c (f) lio agreement affecting the compensation, terms, conditions and  !

. privileges of( employment, including en. agreement- to settle a- complaint filed!

L by an employee. with tre Cepartment of Labor pursuant to Section 210 of the

' + .. Energy' Reorganization Act of 1974, may contain any' provision which would j -i

prohibit; restr,.t or otherwise discourage, an employee from participating in  ;

a' protected 'act1vity as' defined in paragraph (a)(1)' of. this lsection, including. -

but not limited to, providing information to the NRC on potential vtolations

_3 y

.or-other matters within NRC's regulatory responsibilities.,

j 1

- > ~

PART 70 . DOMESTIC LICENSING _OF SPECIAL' flUCLEAR HATERIAL P

11. The authority citatien for Part 70 is revised to read as follows:- 1

' 1 p AUTHORITYi Secs.-

51, 53,161,.182 L 183,. 68 Stat. 929,: 930, 948, . 953, 954, a

.hs amended, sec. 234,. 83 Stat. 444, as amended. (42 U.S C. 2071, 2073, 2201, l

'2232, 2233, 2282); secs. 201, as amended, 202, 204, 206. 88 Stat.1242, as g

amended.11244,1245,1246 (42 U.S.C. 5841, 5842, 5845, 5846).

i M

+

t 1 ,

' t' 3 i

1

. Sections 70.1(c)'and 70.20a(b) also issued under secs.;135, 141,. Pub. L.97-425,-96. Stat. 2232, 2241'(42 U.S.C. 10155, 10161). Section 70.7 also i tssued uncer Pub. L.- 95-601,- sec.10, 92 Stat. 2951'(42 U.S.C. 5851). Section-4 i

70.21(g) also issued' unaer sec.122, 68 Stat. 939 (42 U.S.C. 2152). Section

'70.31?also issued under sec. 57d, Pub. L.93-377,.88 Stat. 475 -(42 U.S.C.

' 2C77). Sections J70.36 and 70.44 also issued unaer sec.184, 68 Stat. 954, as- il amerceo (42' U.S.C.~ 2234). Section 70.61 diso issued unaer secs. 186, 187, 68' Stat. 955 (42 U.S.C. 2236,- 2237). Section 70.62 also issued unaer sec. 108,'68'

. Stat. 939, as amended (42 U.S.C. 2138). 1 o .

For the purposes of- sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273);'-

- $570.3,. 70.7(g), 70.19f c), 70.21(c),;70.22(a),l(b), (d)-(k), 70.24(a) and (b),

j 70.32(a)(3), (5), (6), f(o). . and (i), - 70.36, . 70.39(b) and L(c),- 70.41(a),

170.42(a). andL(c),s70.56, 70.57(b), (c), and (d), 70.58(a)-(g)(3),' and (h)-(j)- ,

are issued under secs. 161b, 1611, and'1610, 68 Stat. 948, 949,'ana 950 as '

1 amended-.(42 U.S.C. 2201(b), 2201(1), and 2201(o)); li70.7,;70.20a(a) and (d), j l70.20b(c) and -(e),' 70.21('c), 70.24(b), ~ 70.32(a)(6). (c), (d), (c), and L(g),

Q '70.36,70.51(c)-(g)',: 70.56, 70.57(b) ~and (d),( and 70.58 (a)-(g)(3) and (h)-(j)

- are issued under~sec. 1611, 68 ' Stat.1949, -as amended (42 U.S.C. 2201(.1));. and

- 5570.5, 70.9, 70.20b(d) and;(e), 70.38, 70.51(b) and (1), '70.52, 70.53, 70.54, 70.55', 70.58(g)(4), (k),L a'nd-(1). 70.59, and 70.60(b) and (c) are issued uncer f sec.161o,,68 Stat. 950, Las amenced (42 U.S.C. 2201(c)).,

x s

12. In i 70.7, the introductory text of- paragraph (c) is revised'.and a new paragraph :(g): is added to read as follows:

i

} ry'.

..u.. ., , - - , - - -

{^ ,

- 42

, 5 70.7- Employee protection.

i . . .

= < . .

l (c) A violation of paragraph (a) or paragraph -(g) of this section by a Comission .li_censee, an applicant for a Comission license, or a contractor or-subcontractor of a Comiss1(,r iicensee or applicant w.y be grounds for--

i

, (g)_No agreement affecting the compensation, terms, concitions and privilegesicf employment,_ including an agreement to settle a complaint; filed' byf an employee with the' Departnent of Labor _ pursuant to Section.210 of the Energy' Reorganization. Act ' otl1974,- may contain any provision which would-prohibit, restriet, or~otnerwise discourage, an. employee from participat'.ng in

~

protected activity (as defined in paragraph (a)(1) cf this section,; including,

~

but!not-limited to, providing inforniation to' the'NRC on. potential violations 4

or-.other metters withir, NRC's regulatory responsibilities.

f

.PARTL72 -' LICENSING REQUIREMENTS FOR THE INDEPENDENT STORAGE O FUEL AND HIGH-LEVEL RADI0 ACTIVE WASTE m

13. The' authority citation for Part 72 is revised to read as follows:

e i

, _ _ . . . . . . . l

+ ,

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4 I

t.

t AUTHORI.TY: Secs. 51, 53, 57, 6?, 63, 65, 69, 81, 161, 182, 183,.

184,186,187,189, E8 Stat. 929, 930, 932, 933, 934, 935, 948, 953, 954, 555,  !

ds' dmenced, sec. 234, 83 Stat. 444, as amendec (42 U.S.C. 2071, 2073, 2077, i 2092, 2093, 2095, 2099, 2111, 220!, 2232, 2233, 2234, 2236, 2237 - 2238, 2282); ]

sec. 274,- Pub. L.86-373, 73' Stat. ~ 638, as amanded (42 U.S.C. 2021); sec. 201, as en. ended,. 202, 206, 88 Stat. 1242,-as amended,-1244, 1246 (42 U.S.C. 5841, 5842, 5846); Pub.- L. 95-t:01, sec.10, 92 Stat. 2951 (42 U.S.C. 5851); sec. 102, Pub. L.91-190,l E3 Stat. 853 (42 U.S.C. 4332); Secs.131,132,133,135, 137, '41, Pub. L;.-97-425, 96 516t.-2229, 2230, 2232, 2241, sec. 148, Pub. L.

1 100-203,101 Sta t.1330-235 L (42 U.S.C.10151,10152,10153,10155,10157, 10161 10168).

Section 72.44(n) also issued under secs.142(b) and ~148(c), (d), Pub. L.

100-203,101 Stat.1330-232,1330-236 (42 U.S.C.10162(b),10168(c), (d)).

-Section 72.46'61so issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134,c Pub. L.97-425, 96 Stat. 2230 (42 U.S.C.10154). .iection72.96(d)also i

issuec under sec.145(g), Pub. L.100-203,101 Stat.1330-235 (42 U.S.C. I

-10165(g)). Subpart7 elso issued uniier' secs.- 2(2),2(15),'2(19),117(e), .;

lal(h), Pub.-L.97-425, 96 Stat.'2202, 2203, 2204, 2222, 2224 (42 U.S.C.

10101,10137(a),10161(h)).

For. the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. :2273);-

$ l672.6, 72.10(f), 72.22, 72.24, 72.26, 72.28(d),- 72.30, .72.32, 72.44(a),

3 (b)(1), ;(4), (5), (c), (d)(1), (2), (e), '(f), 72.46(a), 72.50(a), 72.52(b),

4 J2.72(b), (c), 72.74(a), (b),"72.76, 72.78, 72.104, 72.106, 72.120, 72;122, 1 72.124,J72.126, 72.128, 72.130, 72.140(b), (c), 72.148, 72.154, 72.156, .

~ 72.160,172.166, 72.168, 72.170 72.172, 72.176, 72.180, 72.184, 72.186 are

7a 1 m-o 1

34-g Xy ,

i s

issued:under sec.161b,'68 Stat. 948, as ame'ded (42 U.S.C. 2201(b));

'{

il72;10(a), .(e), 72.22, 72.24, 72.26, 72.28, .72.30, 72.32, 72.44(a),- (b)(1), j i

(4),. (5), (c), (d)(1), (2),- (e), (f), 72.48 (a), 72.50(a), 72.52(b),

72.90(a)-(o),-72.92,72.94,72.98,72.100,72.102(c),(d),(f),72.104,

/2.106,72.120,-72.122,72.124,72.126,72.128,72.130,72.140(b),(c), 3

. 72.142, 72.144, 72.146, 72.148,7 72.150, 72.152, 72.154, 72.156, 72.158,

72.160, 72.162, 72.164' ;2.166, 72.168, 72.170, 72.172, 72.176,-72.180, 72.182,-72.184, 72.166,- 72.190, 72.192, 72.194 are issued under sec.- 1611, 68-Stat. 949, as;amendedt(42 U.S.C. 2201(1)); and il72.10(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),72.50lb),72.54(a),(b),(c),72.56,72.70,72.72, i 3

72.74(a) - (b), 72.76(a), 72.M(a), 72.80, 72.82, 72.92(b), 72.94(b),-

't 72.14C(b), (c) .._(d), 72..t44(6), 72.146, 72.148, ' 72.150, 72.152, 72.154(a),-

i L(b),'72.156,72.160,72.162,72,168,72.170,72.172,72.174,72.176,72.180, j

72.184,-72.186, 72.192 are. issued undni sec. 161o,.68 Stat. 950, es amended-

. (42 U.S;C. 2201(o)).- .{

_ ~

'14. = In l 72.'10, the introductory text of paragraph (c) is revised:and .

y a new raragraphf(f) is added to read as follows:

.. i

..i?72.10 ' Employee protection. '

I i N

'4  !

4

.c- ,

i r

,q' i

,. - r A

1 (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 1

subcontractor of a Commission licensee or opplicant may be grounds for---

u i

(f); ho' agreement af fecting the compensation, terms, conditions and .  ;

privileges.of employment, inclucing an agreement to settle a complaint filed '

by an e.nployee.with the Cepartment ref Labor- pursuant to Section 210 of the .

Energy Reorganization' Act of 1974, may= contain any provision which would prohibit,' restrict; scr otherwise discourage, an employee from participating in

. protected activity as defined in paragraph (a)(1) of this section, including, .

.but not limited'to, providingsinformation to the ilRC on potential violations-or other matters wi1hn NRC's regulatoryfresponsibilities.  ;

i PART 150 - EXEMPTIONS AND CONTINUED REGULATORY AUTHORITY IN AGREENE AND !N OFFSHORE WATERS UNDER SECTION 274

, ,i

-15.- The authority citat:on for Part 150 continues to reac as follows:-

AUTHORITY: -Sec.161, 68 Stat. 948, as amended, sec. 274, .73 St6t. 688.(42 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.

11e(2), 81, 68 Stat. 923, 935, as amended, secs. 83, 84, 92 Stat. 3033, 3039

^

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N-- - - - - - __----__,__,..s.- - - - . . _ . _ . _ , - , , . _ _ _ _ , - - , - . , ,,,, ,.m,., ,y-

f . ,. . .

l

- (42:U.S.C. - 2014e(2), 2111, 2113, 2114 ). - Section 150.14 also issued uncer sec. - '1 53, 68 Stat. 930, as amended (42 U.S.C.-2073). Section 150.15 also issued under secs. 125,141, Pub. L.97-425, 96 Stat.' 2232, 2241 (42 U.S.C.10155, 10161). ' Section 150.17a also issueo uncer sec.122, 68 Stat. 939 (42 U.S.C.

2152). Section 150.30 also issueo 'uncer sec. 234, 83 Stat. 444 (42 U.S.C.

2282).

For the purposes of sec. 223, 68 Stat. 958, as bmenced (42 U.S.C. 2273);

l

-IG150.20(b)(2)-(4)- anu 150.21 are issued under sec.161b,.68 Stat. 948, as i I

' amended (42 U.S.C. 2201(b i); 5150.14 is issued under sec. 1611, 68 Stat. 949, i i

as amended (4P ll.S.C. 2201(1)); anc !!150.16-150.19 and 150.20(b)(1) are '

i

' ssued under sec. - 1610, 68 Stet. 950, as amer.ded (42 U.S.C. 2201(o)). -

+

[

'16. :In !'150.20. the introcuctory text'of paragraph (b) is revised to read as follows:-

5,150.20 Recocnition of Agreement State licenses .-

4 I f

, (b)LNotwithstandingany'provisionto:the. contrary.inanyspecificlicense '

. issueo' by an Agreement State to a person engaging in activities in a non-Agreement' State'or in offshore waters under the general. licenses providedtin' this section, the general licenses = provided in this section are subject to the -

provisions of il 30.7(a) through (g), 30.9,30.14(d),30.34,30.41,30.51:to 41

. e7 .-

i 3;

N 30.63, , inclusive,. of Part 30 of this chapter; il 40.7(a)' through (g), 40.9,

c:

40.41, 40.51, 40.61, 40.63 inclusive, 40.71 and 40.81 of Part 40 of this chapter; and il 70.7(a) through (g), 70.9, 70.32, 70.42, 70.51-to 70.56,.

inclusive,-il 70.60-to 70.62, inclusive, and i 70.7 of Part 70 of this

~

chapter; and to the' provisions of-10 CFR Parts 19, 20 and 71 ano Subpart B of Part. 34 of this chapter. In addition, any person engaging in activities-in non-Agreement States or in ' offshore waters under the general licenses provideo in;this sectien: ,

o t

' Dated at Rockville, MD, this- {4 day ofMitcg,1990.

$a For- tae_ Nuclear Regulatory Comission, e

\

Samuel J. cpilk, Secretary of. the(Comission. . -

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Recuestor's ID: I.  :

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Author's.Name: '

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Document Coments:

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NUCLEAR MANAGEMENT AND RESOURCES COUNCIL gg 1776 Eye Street. N W.

• SJte 300

• Woshingt00. DC 20006-2&6 (202) 872 1280

'89 TC 15 PS :08

' ),.r.coMn ..

83d'NN'sn'* December 15[.dpB9c 6 ch.;

DOCKET NUMBER DD Hw PROPOSED RULE Ln M. A6,%, @

tc4FR 30049)

Mr. Samuel J. Chilk Secretary

U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Attention: Docketing and Service Branch t RE: Proposed Rule < Preserving the Free Flow of Information to the Comission 54 Fed. Reg. 30049 (July 18,1989)-

Reauest for Comments.

Dear Mr. Chilk:

On July:18, 1989,- the.U. S. Nuclear Regulatory Comission ("NRC")

published a notice of proposed rulemaking entitled " Preserving-the Free Flow -

i L

~o f Information to the Comission" (54 Fed. Reg. 30049). On Septomber 19, 1989, Nuclear Management and Resources Council, Inc. ("NUMARC") submitted coments l L on behalf of the nuclear _ industry on that proposed-rule. l

. On' November 8,:1989,- Sen. John B. Breaux, Chairman of the U. S. Senate l;: Subcommittee on Nuclear Regulation of- the Committee on Environment and Public Works, sent a letter to NUMARC expressing concern about some of the statements made in NUMARC's comment letter to-the NRC. On December 4, 1989, a meeting.

was held with staff of Sen. Breaux:and the.Subcomittee to better enable us to understand the~ concerns the Senator had expressed. As a result-of the-additiona1Linformation provided us and the insight-gained from that meeting, we concluded that certain . statements that we made in our coments could be -

misinterpreted and were in need of clarification. In particular, we decided h

L that these supplemental comments should be submitted to clarify our views in two specific areas to ensure that the record in this docket appropriately l

[, reflects our position on these subjects.. -

At the-outset, NUMARC reiterates its strong -support of the underlying l

, policy of the proposed rule,' that'is, to facilitate the free flow of

=information to the NRC. With respect to the first of two areas we want to ' l l

clarify in.these supplemental coments, the comments we had filed on Septnber ~

J 19, 1989, stated our concern that the NRC appeared to be proceeding with this rulemaking on the basis of a single case being cited in the record and that L the NRC had promulgated the proposed rule without waiting for licensee' L -responses-to.the NRC letter to licensees dated April 27, 1989, requiring the l identification of any agreements that might include clauses which could, or-could be interpreted to, restrict the ability of employees to provide

information to the NRC. Since the submittal of our coments, we obtained

-l hk$U N

-f_ -

Mr. Samuel J. Chilk December 15, 1989 Page 2 from the NRC Public Document Room a letter from the NRCIntothat Sen. Breaux dated August 29, 1989, regarding the responses submitted by licensees.

letter the NRC stated that 18 agreements had been identified by licensees as containing clauses that could be construed to be restrictive. Even though the specific circumstances of those agreements have not be made public because of the confidentiality provisions of those agreements, it is now clear that there exists more than a single case which the NRC can evaluate to determine whether, and if so what, additional regulations may be required, and we withdraw our coment on this point.

The second major area where concern was expressed that the NUMARC coments could be misconstrued dealt with the legal permissibility of settlement agreements to resolve disputes so that the time and expense of protracted litigation could be avoided. We now understand the position of the Subcomittee regarding the inclusion of restrictive clauses in such settlement agreements and the limits that are applicable to such clauses. In Sen.

Breaux's coments on the Senate floor on November 8,1989, he referred favorably to the type of agreement that Northeast Utilities had described in a letter to Sen. Breaux dated September 8,1989. We have reviewed the proposed settlement agreement language referenced by the Senator cnd believe that such an approach is consistent with the principles that we support and attempted to describe in our September 19, 1989, comments to the NRC.

We hope that these supplemental coments will eliminate any misunderstanding of the industry's position on this important matter. We ask that these coments be included in the public record in this proceeding and he taken into account by the Comission in its deliberations on a final rule to address this issue.

As we stated in our September 19, 1989, coments, the nucient industry supports the concept of full, and timely, disclosure to the NRC of safety or other regulatory concerns. In that submittal we provided recome idations that we believe would effectuate the policy underlying the proposed rule in a more balanced and reasonable manner. We reiterate our request that the NRC ' consider these recomendations, and we stand ready to assist the NRC in achieving the desired goals of the NRC, the nuclear industry, and the Congress.

, Sincerely,

'I4/L ' _

Jo F. Colvin JFC/RWB:bb

- - - - . . . . . , ,