Text

Recommends That Commission Approve Publication of Amends to 10CFR2,App C as Effective Policy Statement & Certify That Rule Will Not Have Significant Economic Impact on Substantial Number of Entities
	ML20236W354
Person / Time
Issue date:	10/19/1987
From:	Parler W, Stello V; NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO), NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	;
References
	FRN-52FR7432, TASK-RIA, TASK-SE AC45-2-02, AC45-2-2, SECY-87-261, SECY-87-261-01, SECY-87-261-1, NUDOCS 8712070416
	Download: ML20236W354 (79)
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{{#Wiki_filter:i L j e-s .o. p pm **euq,o f e' RULEMAKING ISSUE October 19, 1987 (Affirmation) SECY-87-261 For: The Commissioners From: William C. Parler L General Counsel l Victor Stello, Jr. Executive Director for Operations

Subject:

FINAL RULE REGARDING COMPLETENESS AND ACCURACY OF LICENSEE COMMUNICATION WITH THE NRC

Purpose:

Obtain Commission approval of a notice of final rulemaking.

Background:

SECY-84-159 l SECY-84-421 SECY-85-149 SECY-86-36 l SECY-8G-384 l l Discussion: On March 11, 1987 the proposed rule on " Completeness and Accuracy of information" was published in the Federal Register (52 FR 7432). The . comment period expired on April 10, 1987., The Commission received comments from 23 organizations and individuals. We have summarized and responded 1 to those comments in the enclosed final rulemaking package. As a. resu'It of the public comments received, as well i as recirculation of the proposed rule within the I agency, the staff proposes that one. change be made l to the draft final rule. The proposed rule as ) published on March 11 included a new 555.6b(b), 1 which imposed a notification. requirement, running directly to licensed reactor operators and senior operators, for significant information. This section l CONTACT: Mary Wagner, OGC 492-8659 James Lieberman, OE 492-8214 8712070416 071019 PDR SECY PDR B7

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t f ~ W# f i ldentified D by E lts ? employees,J and : tod notify. N RCE. of) H s information' having' J significant 1 safety? or Hsecurity? 8 ' i implications.,, Employees t would ; be L expected Lto l notifyJ W "W_, ' company fmanagement ~ of information L of?Lwhicht theyl

become ; aware that;- map' : have suchiilmplications.?

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Placing [on; an-l IndividualToperator 2an lobligationitoh ~ Lm i report O directly, J to the ; ? NRC,1 independent ofH his y# b:

obligations to reportisuch ?information. to t his1employern j* ' a,

, L would ! place.. thei :llcensed' individual ' in ; potential 7 conflict' *with.his Jmanagement 1 (in 1 cases :. where the o 1individuait and the managements disagreed J asi to'. i. ?.. $d o y whether. the:. 'information. Jwas.: "significant"1 for.-- reporting l purposes);,and !wouldn noti ' appreciably - Lenhance 1 the ' agency's " ability L toL obtain J needed L safety: ,s H information.. tin. all' other? respects, theEdraft. final r rule. remains the-same aslthe. proposed rule.! p .;m' ' It_ was; stated:in' the' Notice accompanying;the proposed rule E that. modifications a tof the. Commission's o Generall ^ StatementJof' PolicyiandI Procedu' rem for NRC J Enforce -i - ment H Actions, 10 CFR ~ Part.2, H A~ppendix..C,: will be i u< made 'at. the Etime.: the-final: rule L :is n adopted. 4 Accordingly, L revisions s to : Part 2,' Appendix C, Lwhichi a y reflect i ithe. final! rule andc sthe policy. ' changes m , g; announced' therein,' are also included in this package. Recommendations: L That the. Commission: X 1.. i Approve ' publication' : ofi s the" amendme' tsi to n Appendix. C to ;10 CFRJ Part 2, as an ~ ~ effective policyE statement, and s to' Parts 30,140,.50, 55, 60, 61, 70, 71, 72,110 and 150 as a final rule ' (Enclosure 1). h 2. Certify that this rule will' not have'.a significant' economic impact on a substantial number of 'small f entitles, in order to satisfy requirements of the Regulatory Flexibility : Act, 5 U.S.C. 605(b). y: ', 3. Note: a. .That the amendments will be published.in F, the Federal Register',. and- - will become -effective 30. days after publication. F' b. No environmental impact statement, negative declaration, or environmental impact y V.- r

y -{, l n+. , T - 3'- a. appraisal need' be prepared in connection

with the. amendments because,. the. action y

-j' taken' by the ~ amendments.. will not.. signifi- - j cantly affect-~ the quality of -the L human environment, c. The reporting.' and recordkeeping require-ments contained in this regulation: have 7.. ]R been approved by the. Office of Management. L' d and ' Budget, OMB. approval Nos. 3150-0017, -0020,.-0011, -0018, -0127, -0135, -0009, l -0008, -0132,.and. -0032. - When.. this? rulemaking.. package initially 1 was L submitted f .l to OMB 'for clearance 'under the Paperwork a + < Reduction Act, OMB did not grant: approval (Enclosure 3).; Upon' clarification.' by : the i N RC -. of - the_. requirements. of.. the. proposed rule (Enclosure 4), we were informed orally that OMB granted clearance, effective October 7, 1987,. and that. an Action - Notice = reflecting. the ' clearance will be.- placed in-OMD's files, with a' copy to be sent to.NRC. d.- The Office of. Governmental and Public Affairs will issue a public announcement; such as that in Enclosure 2,

upon publication of the. final rule in the Federal c

Register. e. The NRC staff will inform the Subcommittee on Energy. and the Environment of the House Committee on Interior and Insular Affairs, the Subcommittee on Energy ' ' and Power of. the House Committee on Energy and

Commerce, the Subcommittee.

on Environment, Eriergy and Natural Resources of the House' Committee on Government Operations, and the Subcommittee on Nuclear Regulation of the Senate Committee-on Environmental and Public Works of' this action by letter. f. The Federal Register notice of rulemaking will be distributed by ARM to power reactor licensees / permit holders,. applicants for a construction permit for a power reactor, and public interest groups. ,g. The Chief Counsel for Advocacy of the Small Business Administration will be informed by DRR of the certification regarding economic impact on small entitles together with the reason for it. e

e 4-4 F Scheduling: If scheduled on the Commission agenda, recommend this paper be considered at an open meeting. In view of the importance of this rule, it is recommended that Commission action be scheduled for the earliest possible date. /, SW h+ William C. Parler General Counsel N O \\w V or Stello r. Executive Director Operations

Enclosures:

1. Draft Federal Register Notice

2. Draft. Public Announcement

~ 3. August 7,1987 letter from A. Fraas, OMB, to W. Mcdonald,- NRC-

4. September 8,1987 letter from W. Mcdonald, NRC, to A. Fraas, OMB Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b._ Wednesday, November 4, 1987.

1 Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Wednesday, October 28, 1987, with an information copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected. This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of November 9, 1987. Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time. DISTRIBUTION: Commissioners OGC (H Street) OI OIA GPA REGIONAL OFFICES EDO OGC (MNBB) ACRS ASLBP l ASLAP SECY w_:_

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10. CFR. Parts 2,030,.40,- 50, 55, ;60, 61,[70,171~, 72g 110 -and 150 l

[ Completeness 'and" Accuracy of.informatlin:, Ly :a i AGEN CY ':,. ; N uclear[ Reg ulatory[Commissl5n'. ;

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J ACTION:? Finaly rul'e 'and statement of policy.3

SUMMARY

- TheLNRC Lis amending [its ; regulations tof codifyL the ' obligations.. q. n., L .O

ofilicensees L and Japplicants E fori licenses iJ to 1 proOlde -l the-Commission :.with ;

~ comp,lete.?and E accurate information,;.to l maintain ? accurate)f records' andItol N :-

provide for l disclosure-of information' identified by'llcensees'as significant(for?

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licensed activities. : This ; action. is L necessar'y[because, the ' N RC imust " receive l d

t .-I 'i .L . complete,L accurate,: and : timely communications: from'its' licensees : and clicensei applicants' if the 'NRC, is?to fulfill ~lts statutory responsibilities..in addition, 1 the Commissioniis Lrevising 'its. Enforcement Policy' to reflect the' amended rule. .5FFECTIVE DATEi i(insert 'date to be effective 30' days afterfpublication.) i d . FOR L FURTHER INFORMATION' CONTNCTi Mary : E.J Wagner, O.ffice of. the. j . General Counsel, U.S.. Nuclear Regulatory. Commission,, Washington, D.C. 20555,1 Telephone: (301) 492-8659.. j .a ' SUPPLEMENTARY INFORMATION: 1 1 J l'e .l.. Background- -j On March 11, 1987, the Nuclear Regulatory Commission published in the l l - Federal Register (52 FR 7432) a proposed rule to codify an applicant's and l ~ 1 f f O L

prg 7 7--- 7 1 A -L fy7 r Q4-L2-M. x i;; ( licensee's - obligation ( to' ensure. the i completeness: and.: accuracy: of itsi

V Communications :'with' the ~ Commission, to "maintaff accurate: records and' to.

. -report tof the ' NRCI information: Identified L by Lthe / applicant or' licensee. as-i y -h'aving : a'.'significant implication ' for ~ the public' health. and safetys or common

defense and'. security._.

p As discussed in 5 the statement of considerations that accompaniedithe iproposed rule, Laccuracy and forthrightness ~1n communications to thel NRC by_ ~ licensees and-applicants: forf licenses are essentla! If the NRC is to fulfill its ' ~ . responsibilities to ensure that: utilization of radioactive material' is consistent - with the health : and. ' safety of.. the. public and the common defense and security.- Several provisions of. the-l Atomic ' Energy' > Act highlight : the' importance of accurate information. Section 186: provides that: . Any llcens.e 'may be revoked for any. material; false' statement in the ~ ' application or any statement ' of ' fact required under - section 182 '.... Section 182' provides that: The -Commission may Lat any~ time after the. filing. of. the original application, and before ~ the expiration of the. license, require further: written statements in order. toienable the Commission" to determine whether the application should be granted or denied or whether a' license should be' modified or: revoked. All applicatioris . and ' statements! shall. be signed by thw aipplicant or licensee. Applications for and statements made in connection with, licenses 1 under. : sections 103 ahd '104 shall be made under oath or affirmation. The Commission may ' require any other applications -or statements to be made under oath or ' affirmation. This' need for accuracy In communications has been emphasized through the . adoption in ' licensing ~ provisions, although not on a uniform basis, of requirements' regarding the submission of applications. See, e.g., 10 CFR - 50.30(b), 55.10(d), 61.20(a), 70.2'2(e) and 72.11(b). .L ._x

O.; ._3_ The Commission's expectation of accuracy in communications has not'been ilmited to ' written 'information submitted in ' applications.- The Commission's - decision in' a 1976 Enforcement action taken against ' a; utliity established a comprehensive requirement for, appilcants and licensees to provide. complete' and accurate-Information ' to ithe Commission. - in that. case, false statements were alleged' to have been made in the utility's submissions to the Commission on the geology. of the plant site. . Omissions of information by. the utliity were. also evaluated: two were failures to present evidence.' at the Licensing Board construction permit', hearings. about suspected faulting and the third . omission was the utility's failure to' provide the Board. or staff with ' reports n . prepared by -its geology consultant. In its decision, the Commission concluded "that the. material false statement phrase in the Atomic Energy Act may appropriately be read to require fuli disclosure ' of material idata". Virginia Electric 5 Power Company (North ' Anna Power Station, Units ' 1 and 2), CLi-76-22, 4 NRC 480 (1976), aff'd, 571 F.2d 1289 (4th Cir.1978)'. The Commission decided materiality is to be Judged by whether 'information has a natural tendency or capabliity to influence ' an agency decisionmakerf that knowledge of the falsity of a material statement is not necessary for a material false' statement under section 186 and that material omissions are actionable to ' the same' extent as affirmative material false statements. Under this standard, both the written statements and omissions made by the utility were subject to civil penalties. In subsequent years, the j ' Commission took a number of enforcement actions for material false statements. l These enforcement actions included the following factual situations: omission of information about receipt of draft reports during oral statements made in

-,,j 1 I, (. p .1 p 7 ../'y', y 1 ..1 y c r. iT .._ g... t T y: ....l, l H ! an n informal meeting : between.the; ' staff. and a Jlicensee; J statements in a-m n 4' ' telephone J call,'letterf andl oral '. briefing that.lmobilei sirens forming 1 part of a , < dlicensee's prompto public " notification 7 system ~ were.. Installed : and operational,, iwhen in fact' theyC were' not;. oral. statements. to an'_ NRC inspector 'that' licensed- ~ .materialL had ; not L been Lout of storage,. when' in fact it> had ' been ' used; and 4 e O erroneous. statements in response s to. an -IE Bulletin concerningi.the use'. off e certaib lub'ricants and' fasteners. k g > . The Commission's GeneralL Policy-~ and Procedure _ for TNRC ' Enforcement y

Ac' ions, 10 CFR.Part12; Appendix C, ' originally. published ' on' March 9 A1982.

t n; ? s. .y (47 FR 9987), specifically dealt with enforcement for.' material false statements.

In March 1984, after several.'. years J of.. handling enforcement ' cases under? thea

' VEPCO: ' holding' Land this enforcement pollcy, 'the Commission specifically! ~ solicited comment ; :on.whether.' the ' Commission. should - consider - changes to ' its-policy.on-material false statements. -(49 FR 8584, March 8,1984). Comments received in response to' this. solicitation were summarized. in' the March 11', ^ 1987. notice. On August 31, 1984 the. Commission formally' established the Advisory ' Committee for Review of the Enforcement ' Policy, a 'small committee of, ' individuals selected from outside the agency, to conduct an in-depth study of the' enforcement program. (49 FR 35273, September 6,,1984: n, addition to considering. the comments already submitted to the Commission, the Committee < solicited further. comments from interested persons on-the extent to which the NRC's; enforcement policy had been serving the' purposes announced by the Commission, including the policy on material false statements. (50 FR 1142, January 9, 1985). Public meetings were held by the Committee during which 4 e s

p?? 'yn,..,, ( , \\ ;W (l: (p. .5" t b !46 i ' witnesses. drawn, from. : NRC : staff, licensees, ' industry Lgroups and law /s.onsultingJgroups gave, testimony. to' the1 Committee,;many commenting. on thej material false statement ' policy. The Committee's ~ conclusions'. andx ~

recommend'ations are. summarized ; In the-March 11~,

1987. Federal ' Register: notice; - e .11. : Analysis of Public Comments in response to the March 11, 1987 Federal. : Register. notice, the-

Commission : received comments' from' 23 organizations and. Individuals, including n:

utilitiesf. lawJ firms, citizens' ' organizations,' O medical physicisti a' commercial testing. laboratory,' and members of.' the public. Copies of, the comments may. bel examined -in the Commission's Public Document-Room at 1717 H Street, NW,.

Washington, DC.

The comments, summarized an'd responded to bElow; have been categorized under the following topics: (1) licensee - notification of significant.' information;' (2) legal issues; (3): material false statements;' and (4) completeness of. information. Licensee Notification of Significant Information Many commenters opposed the adoption of paragraph (b) of the - 1 q regulation, in its entirety. A variety of reasons? were given as to' why para-graph (b) should not.be adopted. Comment: Several commenters expressed the view that the reporting requirements of paragraph (b) are vague and difficult to implement; what is e _L= 2

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LResponse:? ;The1 Commission ~ believes / that the requirements. of proposed.-

7 paragraphf(b)c areL sufficiently; clear; thatt licensees willE be-' able to determinel 0* 5 r 't \\- ..when. reporting Lis; required.. : The standardLfor reporting is Enot so broad that - ( licensees' should. have. difficulty; recognizing Ith Fo6 exsmple, e the ruleL doesi, ~ . notiequire licensees to predict:what. the NRC will likelyideem to be " material"' g ~ . Information, ! an1 arguably-vague: standard;.' rather, ; the standard is one ' of a - E '< ' licensee'sf own ? recognitionlof ;information witi significant. health (or. safety : or? icommon, idefense or a security' implications.. This is? 'a standard that the-(w - Commission 'should reasonablyj expect licensees : to-recognize. Moreover, the - notice.of proposed ' rulemaking gives guidance, inj the form of-examples,. as to what couldL Indicate ; recognition by licensees of the ~ significance of. the: ~

Iriformation.

As noted; in VEPCO, l rio. specific set of regulations can ? be-expected, i o D cover all possible L circumstances; within this constraint, the-t m ' Commission believes.the requirements of paragraph. (b) are clearly set.forth. Comments. One' commenter expressed the view that' the provision' that the.. ] 1 requirement ' - is "not ' applicable - to information... ' required to - be j provided... by. other requirements" could be interpreted to mean that p'aragraph. (b) does not apply to power reactors. ' Response: The provision that the rule is "not applicable to information .;... ' required < to be provided.... by other requirements" is intended to j make' clear,that the rule requires the. reporting of residual information not

covered by one of the specific reporting requirements, and is not intended to w-

. exempt-power reactor licensees from the provision. ux 9e=

Q g :,: W }f yy,' y,'~ ~ ' '] g., m, m m .;.i?: ' { '5l ,i 1 Qff F W N z-17 4 1 ys' L Q i 1. sComment:1 : SomeLcommenters1 expressed the view l thatL paragraph (b)tisi / s ,y h. Tunnecessady'.'. yThey[ felt 7 thEt Lparagraph (a) Eof the[proposeid s regul'ation l. ,1] r m 1. ] ,r' ~ , providesi the; 'necessary (degree of: confidence.. ' that : information l thati Tis 7 ~ .~ , significant enoughito have implications for.:ihe; public healthTand..l safety;or the: t common! defense and security: wilij bel provided to; the Commission. - In the'same: '

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l y.> l vein L ! othersinoted ' that the Commissions cites; no Linstanbe : wherei a licensee? < H j discovered, but ;wasiable.toiconceal, 'somejsignificanthinformation. beca'use' it < Lwas notispecifically reportable;,therefore, since ~ no f need' for the requirement h . has been identified, it should :not be' imposed.

Response

No L specific 1 setif(reporting requirements,: such. as ; those g ~alreadyf existing under NRC.: regulations, can ever: be, expectedL to coverf all L - possible circumstances,1 and ' for ' this-reason. a residual: requirement is - considered Appropriate. Comment: Several. commenters. thought ihat.the two-day period, for' 3 L notification of the ' appropriate Regional Administrator.. was not.llong enough. -

Response

The Commission believes that, once a i licensee ' recognizes iriformation as having significant. implications: for public health' and safety or the' common defense and security, two working days is ample time in' which to report the information. As noted-below, this notification may be oral.- Comment:. One commenter questioned whether the notification was to be oral or in writing. -

Response:

The notification may be oral. Comment:- dne commenter saw some ambiguity in the proposed rule with . respect' to the relationship between paragraph (a) and paragraph (b); since the intent element : of paragraph (b) does not apply to omissions under 'ld'

i i L 1 -S-- paragraph (a),'and most information can be linked to some licensing submittal f i or oral presentation, the commenter reasoned that almost any omission could i be construed to be covered by paragraph (a). It was suggested that the-i rule be clarified.to include all omissions under paragraph (b), to avoid an ) 1 " overly broad" enforcement policy.

Response

The Commission does not wish to ilmit violations for omissions to situations involving an element'of intent, as the commenter has proposed. Paragraph (a) and paragraph (b). Impose two distinct requirements. Para- -graph (a) codifies an. applicant's and a licensee's obligation to ensure accuracy and completeness of communications with the Commission or in' records required by tite Commission ~ to be maintained. Paragraph (b) pertains to a' licensee's obligation to report information identified by the licensee as significant, notwithstanding a non-deportability determination under other reporting requirements. While intent is an appropriate element of a violation under paragraph (b), it is not a necessary element of 'a violation under paragraph (a). Comment: One commenter argued that ' proposed 5 55.6b(b), which imposes a notification requirement that runs directly to individual licensed operators, interferes with managerlai prerogatives and subjects individual operators to serving two masters.

Response

The. Commission has decided to delete proposed 6 55.6b(b) from the final rule. The Commission appropriately looks to the utliity licensee to evaluate it;e safety significance of information identified by its employees, and to notify the .(C of information' having significant safety or security implications. Employees are expected to notify company management of -.---_,____-mm

y , p: y y ._g_ / 'information of.which they become aware that raay. have.such Implications. + Appropriate ' company officials 'would then be required to determine :the-significance of' the e information and deportability. to the' Commission.i N RC's a adoption of a rule. which would place.on the Individual operator an; obligation to report. Information directly. to ' N RC,-independent.of ' the - employee's . obligation to report su'ch Information to his employer, _ would place the-individual in a situation involving potential confilct with his management -(if the employee thought _ the' Information ~ was.significant and his employer did not),. without. appreciably. enhancing the agency's ability to. obtain needed safety-information. .Section 55.6a(a) of the ' proposed rule is being _ retained, and appears,as 6 55.9 in the' final rule. Comment: ,A number of commenters criticized the rule for imposing. a reporting requirement only. on information which an applicant or licensee determines to' be _significant. Some thought this provision will allow ' licensees to evade the rule by never finding any information to be 'significant. One commenter said that leaving the decision to the utilities as to what is "significant" essentially-amounts to an abdication of responsibility - by the NRC.

Response

While deference is being given the licensee under the rule, it is not absolute nor is it an abdication of ' the NRC's responsibilities. A licensee cannot evade the rule by never " finding" information to be signifi-

cant.

The fact that a licensee considers information to be significant can be established, for example, by the actions taken by the licensee to evaluate that information. Thus, even though the rule contains-a subjective test in requiring reporting of information a licensee recognizes as significant, there S

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'.n. s t , y. s g ' ' ' f "; y gy - 10 ' - po J- .J p f / ' . 'are f objective; tindicia lof L recognition 1 that~ can. be.. used %y lthe D NR' ' in C m .. determining!) whether D al:llcensee _ In L ' factf recognizes ? the : significance. of.! the' l s a r: Information'in question. The ~ Commission believes that ' the' rule as. drafted, " requiring reportingiof significant' information. only' when' licensee recognizes;it::

as / such',- offers f more.- guidance j to La licensee ;than a formulation. which would.

h require.Ea'.; licensee ; toJ.try.to. predict - what the Commission will, deem L to. be W ' material,j and L is Sufficiently-specific to discourage attempts to evade the rule. .b x H Legal issues. e y ' Comment: ^.One.commenter questioned the Commission's' legalsauthority to. impose, an _ " additional recordkeeping requirement" '. and : a "new notification + requirement", arguing that section 182 of the. Atomic Energy i Act - does ~ not-authorize jthe imposition of;a generic recordkeeping requirement or generic notification requirement.- ' Response:' The Commission: has extensive statutory authority,in addition Lto section - 182. to require. ' licensees. and. applicants 'to - report complete Information and to maintain accurate records. That authority is derived from' the licensing provisions in the Atomic Energy Act along with the rulemaking- . authoritys of section - 161o of the Atomic Energy Act, which permit the

Imposition of reporting requirements and recordkeeping requirements.

Neither Paragraph!(a) of the new rule, which codifies an applicant's and a licen'see's obligation to ensure the ' accuracy of its communications with. the Commission,.. . nor ~ paragraph.(b), which codifies in modified form the " full disclosure" l l >f 1 b.l.

..,.c .,_7 , : } l{ 'f ?' l Vg ; W S, 4 e .m .x i.i. il ? ? ' ,, g ' ^ D y.j u c }.t. ' aspects.of thec.VEPCO decision; creates. any new' obl'gations for licensees-and. i ~ Mapplicants. ' Comment: It was also argued that sectioni186 of[the Atomic EnergyL Act- ~ l permits.'! revocation 1 of 1 a:. license only-for a materialJ false = statement 7 'in ' v. connection;with'aE cense appl _ication or with " statements provided in. response li s ato a request under section 182. < Responsef LThe commenter's conclusion is based: onihis reading sections: 1182 and J186_ of the' Atomic Energy? Act to say that a material false statement' can exist only; when' the statement 'in ' question'ist contained"in en: applicatiori r ori sought by the,NR'C: under 'section 182 'of the Act.. The commenter1 is both-1 misreading sectioni1861 and. misconstruing the basisj of authority for theinew? 1 rule) ' One:can makei the argument that a literal' reading of the > Atomic Energy; 'Act' requires a false statement:to be in an' application or a response sought by; the NRC '~under section.182.. .However; the court 4n VEPCO. held that;the Commission's L expanded interpretation of section 186: permitted the term - ? alse stat'ements" to encompass omissions as well - as affirmative " material f statements. Moreover, the -Commission's; long standing practice 'since the m VEPCO: decision has been ' consistent with the VEPCO interpretation to ' reach statements o and-' omissions not' contained. In. an - application - or section '182

response, y,

More importantly, the. new rule does 'not utilize the term " material false ~ statement"-and is not based solely on sections 186 and'182. Rather, the. rule is :also based on the. licensing provisions of the Act and section 161, it is l inconceivable that Congress would have established the broad regulatory authority in the Atomic Energy Act, which is considered unique, Siegel v. j

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? % f - 12 1} l \\ .AEC,3 400L F.2d : 778, : 783I- (D.C. Cir. :1968), i and..notT grant $d sufficient l 2 ,.adthdfity : for i the Corbmission: tof require commun'ications, lregardlessL of the ' E

[ format' I toibeJ completefand' ' accurate.- The public j heslih andi. safety ' anil

/ common defense and security.Lrequire noL less.. i Und'er the new:: regulations',7 R, J

civill penalties w6uld..be authorized ' under i section ? 234 ; because. the: regulations :

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are Issued under: the. enumerated' licensing provisions in section 234(a)(1).

Iri? i ' addition, a, violation ;of, these regulations would. constitute a' viola'tloni for? which ' + 2a ' license could be revokedi underlsection 186'.. Under section 186, a. license r cani beTrevolfed for failure to : meet _ a regulation,; including;the f communication - regulation. Finally, i the o Act ' permits J a i. license, to L be revoked E because' of s

conditions whichHwould s warrant ' refusing to ' grant la jlicense, on an original T

Clearly,. the Comm'ssion -would not have. issued tad license to: ? application. i - f persons. who were? not-committed : to. providing -complete : cand accurate J information in all"of their communications to thel Commission. - L [ Material False l Stat'ements , Most,.commenters. endorsed, as a positive Lproposal,, the Commission's-decision to exercise'Its discretion in the' application of the term '! material false- . statement" to miscommunications and limiting the use of.the term to situations - i where there islan element of intent. They-. expressed.the view that careful Lusel of the label " material false statement" should assure that any adverse ' i connotation associated with its use is Justified. , Comment:- A few commenters opposed narrowing the application of the f.: term " material false statement". In their view, retention of the material false 1 m.__u._

E t o.m.- T Q7 yQ,,W f n ~ L.; ~~ ~ ~ ~ ~

o l%, l e.w 2,,-

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statement olanguage[(and ? I'ts1 negative connotations)l forLa L broad J range " 6f :

j

[ ' f.,,.

J < communication L errors ; would provide more fincentlUe fokIN:ensees' toireport Y w ~ i L ilnformationlin'a. timely andIcomplete' fashion. J + . Response: l Asumany commenters have pointed out, al chargetof materialf o w falsef. statement t idequated ? bysmost people with'l lying ? and D an;. Intention ito?;,-. n ? Becausesof[this connotation,y th' JCommission believes'Lthe chargel ' ' mislead. e i Eshould be reserved for. flagrant communication failures. 'Under? prior policy',-- almaterial:. false',' statement could: be felther Jan4

affirmative-statement?. oral or, written, or an omission,: ' and ' could' be '

s '. unintended 1and inadvertent casJwell as. Intentional. The. Commission-believes : H that::adhlication.1of the. term ' material false -statement to all' of these situations; / ' ' is) not! as ? effective)in improving accuracy: and completeness of Information :as ' e ; the; reservation: off this label 'as: an ; additional ' enforcement' tool.iln egregious ' i situations. The rule 1will. minimize the potential ~ of persons not-providing - Information bec'ause of ai fe'ar of being labeled as a submitter of a Lmaterial-false statement.':

Comment:

One commenter criticized the rule forf not containing 'a s - definition of-material false. statement.

Response

The. Commission ~ has decided to exercise its discretion in the

application. of the term material false statement by limiting the.use of: the term':

to! situations where there -is. an J element of. intent. As emphasized-In ' the statement, of considerations-accompanying both the proposed rule and this final ' rule, the -Commission is reserving. the use of this label as an additional ' enforcement tool iln egregious situations, which will be ' determined on a - case-by-case basis. With the' adoption of this rule, the Commission will have n k ^ 4 - _ - _a

m,, L ~ h ( n f_3 ' ~ i Y ^ A + %g m + ;. ,y 1_ : g p _: (' l i m llf c ,} c } j o r i "" ' ithe mechanism Ltof appipf the. full range; of.. enforcementLsanctions to' inaccurate p a 'i , : commu'nications. orJ records' L without i reliance on: /the ~ term - material. false ' statjmentt 7Thus, the label df mateblal. false statementIis no longer significant1 4 ifrom; a legal' perspective.< L [,' Moreover,? thei. Department of Justice. supports-the L Commission's, decision. p ,,g /notito define 1a materialifalse, statement, In.. view of thel potential?forl confusion. x x (froml the Commissions ~use of f:the. term' materialJfalse L statement finfits" civil ' context and _ criminal? : prosecutions 4.for material-false statements : under -18. U.S!C. 1001..

Comment': -

.One commenter objected to the use.'of L the L term. " careless 3u disregard" which is used in the statement of considerations ' accompanying. the-L l proposed rule to L litustrate a - situation where a. material' false statement label: 'might be appropriate. To the. commenter,' the concept of " careless disregard" Is ' appropriately. used. In the context of. negligent behavior - and not: where - - theris.an.elemerit of intent. e

Response

The' Commission believes that a situation involving careless . disregard. may in certain circumstances appropriately: be labelled as.a material false statement.. The concept. of careless - disregard goes beyond simple negligence and can.give rise to a flagrant communication failure within the i scope of.the-new policy. Completeness of Information Comment: One.commenter thought that the requirement in paragraph (a) for " completeness of Information", if interpreted in a strict sense, may y I' 4 a __.[-.____._

~, ,WYg if t' om .t Lif W,y:n pp, 15: 4 n< y I 5 , NRC.. Intended; and 1willl exactL LsuperfluousL - .. encompass : imore; thanT ; the :

Information.-

? c n

Response

Since the' Commission, lIn : requiring; completeness: of' informa-; ~ tion ',. L.is' not. imposing; a t:newf requirement,; it: does ; not. expect. to,seeJ an: incFeaseLin(the amount 1of information reported by;a licenseefor1 applicant as a L result of this codification of, existing policy.- Comment: ' Another commenter expressed the view that reporting.as much ' L information as ' possible 'during ) an '. event can confilct with - providing. complete - and Eaccurate { information; 7 in ; practice,. the.. requirementimay : limit L information - exchange 'during'anil'ncident' to informa'tlon L nown to,beLaccurate. k ~ Responsei 1 As' L described above,o since; the 1 Commission,,in i requiring ^ complet'e' and accurate:Information,q is not imposing a.new requirement, it does t ~ q - not ; expect - to see a s significant 1. change in licensee-' or.. applicant - tiehaviorL. In - reporting;as a result of this. codification of existing policy.. Comment: Some - commenters ' stated that oral t communications ; should ' be excluded ' from the rule,= on fairness grounds.- One commenter noted that in. ~ telephone. communications;the da,ta transmitted' and the data received are;not - always identical in that people interpret communications within.their.own terms of.. reference.' Moreover, i when : an inadvertent-error. Is made in an oralJ communication, a call back ' to. correct - the. error, in the view of this. , commenter, would be an admission of a violation of the rule, u l, -Response: The' rule covers all communications. However, : the. 3 Commission ' intends to apply.a rule of' reason in assessing completeness of a ' communication. For example, in the context of reviewing an initial application

or a renewal application for a license, it is not uncommon for an NRC q

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q., 16 ~. Ib.: y c[" it ' reviewer. 'to seek) additional 4information' to clarify: his or her' understanding;. of L ~ thefinformationialready provided. "This type of inquiry)by'the NRC does not-necessarily' mean that incompletely information whichlwould ' violate this' rule has, been submitted.. 1 w. 1Normally, an inadvertent' error in an oral communication-that is promptly. corre'.tedilwill not f result. in an enforcement action.' ' Further guidance on oral.. b, c communications :is 'provided below. In '. the - discussion"of ' EnforcementlPolicy - ' associated with. the. rule. p 1 Comment:.. One"commenter : noted 1 that only a a. very small percentage > of ' documents' maintained 1by La licensee. undergo the kindiofI scrutiny. glven ~ to [ Jdocuments lactually. provided to the NRC as Lan-affirmativ.e._ representation of? ~ .w what :lt believes Tto be correct' information ~ on L which the NRCi should ; relyfin- ~ licensing ' or. regulating a plant. The commenter predicted a. " compliance. Ihightmare" If the standard of completeness were applied to.all; files > generated - such 'as QA' filbs. for licensee'sfinternal ' user Response:; it has always been-impilcit in.the Commission's' requirements . that ' a licensee maintain certain records that tho'se records accurately. reflect r the activities documented. -An incomplete - QA ' file is a violation of existing. requirements. The explicit statement in paragraph (a) of the new rule of the standard of accuracy of records required by the NRC to be kept. does not'in 1 ~any. way change existing. rec ^ordkeeping requirements 'or add to the kind ;or - i nature' of records expected to be, maintained. t P }

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o n

m gm I'f ,, y ,g.g. New : Regulations m' a g% d. sE '. 0 ;. -i 1,' [ fterj ca$eful consideration of"all the' comments received, the: Commission + ).y; ' q hasideleted proposedil 55.6b(b)',, which Lwould -impode a 'notificailon, requl' reb ...,3 y 'c Lment; runningfdirectlyf tollicensed operatorsi and senior' operators,- (for.- c y Es_lgnificant L.information, E and otherwiseL. adopted l the. amendments L in nthe: same m j forme that[they appeared in ?the: March 11',,1987iFederalf Registeb proposed l g g p: 1 ~ w /, frule; w+ o iThe :new) regulations include ldentlAal provisions in ?Partsi 30, 40, 50, 60;. ~ 61,770, 71, 72,; and 110f which contain. two elementsp L (a)L a Lgeneraliprovision ; ~ ..m 3;; which:codifiesL the curreritl policy which1 requires that allLinformation:provided? Cl tto(the Commission byJ an: applicant or licensee or ' required by the. Commission, to; b'e Lmaintained byT thel applicant or licensee shall be-complete and; accurate yo iniall';materialL respects; and. (b), a. reportingL requirement-to replace: the full 1 m y ' disclosure aspects 1of? the, current 1 material false L statement, policy j that ' would. g require ' applicants. land L licensees; to ? report toj the;N RC Information identified " ~ byithe LapplicantiorL licensee as having a Significant implication.for'the' public N health and safety.or common defense and security. The amendment to Part 55 - S contains the first element only. Section 150.20 is being amended -to provide - 4 that1when' an Agreetnent State licensee is operating. within NRC's' Jurisdiction ' p under1 the~ general license granted by i 150.20, the licensee is subject to the above. requirements. { 1

These regulations are being issued under the Commission's authority 'in~

{ [ sections 62, 63, ' 6E, 81, 82, 103, 104, 161c, 1610, 182, and 274, as well as 4 section 186', of the Atomic Energy Act of 1954, as amended. In addition, f ' r/'I y

[ 4, while section 186, can be read as addressing only material false statements made in certain contexts, the scope of the Commission's responsibilities under the Atomic Energy Act of 1954, as amended, and the Energy Reorganization Act - of 1974, as well as the Commission's decision in the VEPCO ' case and subsequent enforcement actions under that statement of the law, make it clear that the Commission has the inherent authority to require communications with the agency on regulatory matters to be complete and accurate regardless of their context. Under section 186 of the Atomic Energy Act, failure to observe any of the terms or provisions of any regulation of the Commission is an explicit basis for revocation of a license. Thus, with the adoption of 'these new regulations regarding accuracy in communications and records,~a violation of paragraph (a) or (b) of the proposed rule may be grounds for revocation of a license as well as imposition of civil penalties under section 234 of the Atomic Energy Act. The final rule codifies in a uniform manner an applicant's and a licensee's obilgation, as articulated in.the VEPCO decision, to ensure the accuracy and completeness of its communications with the Commission. The provision does not create any new. obligations for licensees and applicants;- rather, it describes in a regulation rather than in an adjudicatory decision, the standard for accuracy and completeness to be adhered to when supplying information to the agency or when generating and maintaining records required to be kept by the Commission. The standard described in paragraph (a) of the proposed rule, " complete and accurate in all material respects," continues the degree of accuracy prescribed in the VEPCO decision; that is, any information provided to the Commission or maintained in

.,d'

k records ' required by. the Commission which has the ability to. Influence the agency in the conduct of its regu'latory responsibilities must be complete and accurate.

Un;er this rule, not only material incorrect information, written or oral, but omitted information 'which causes an affirmative statement to be materially incomplete or inaccurate, will be subject to sanctions. The rule uses the phrase "provided to the NRC" rather than " submitted to the NRC" to indicate that all communications, oral or written, throughout the term of the license, not just at the application stage, are expected to be complete and accurate. The Commission -intends to apply a rule of reason in assessing completeness of a communication. For example, in the context of reviewing an initial application or a renewal application for a. license, it is not uncommon for an NRC reviewer to seek additional information to clarify his or her under-standing of the information already provided. This type of inquiry by the NRC does not necessarily mean that incomplete information which would violate -l this rule has been submitted. This new. provision also makes explicit the requirement that records re-quired to be maintained by the Commission must be complete and accurate in all material respects. It is clear that when the Commission establishes e requirement that a licensee generate records to document a particular licensed activity, inherent in that requirement is the expectation that those records will accurately reflect the activities accomplished. In the past, when the Commission has discovered that inaccurate or incomplete records have been developed or maintained, citations have been issued for violation of the underlying recordkeeping requirement. Now that the Commission is adopting ._ -__ A

i a i + .20 - l a regulation which. states a generic requirement for accuracy in information made available to the agency, it is deemed desirable to explicitly refer to' information kept in records pursuant to Commission requirements for inspection ' by the NRC, as well as information submitted to the NRC, since the standard for accuracy and c. completeness is the same for all information in whatever form it is madii available to the Commission. This explicit statement of the standard of accuracy required for records does not in any way change existing. recordkeeping requirements or add to the kind or nature of records expected to be maintained. Like paragraph (a), paragraph (b) creates no new obilgation to report information to the Commission. Rather, it merely codifies in a modified form the " full disclosure" aspects of licensee and applicants' obligations established by the VEPCO decision. In that decision the. Commission recognized its obilgation "to promulgate regulations v;hich provide clear, comprehensive. guidance to applicants and licensees," VEPCO at 489, but went on to conclude that, [T]he fact remains that no specific set of-regulations,- however carefully

drawn, can be expected to cover all possible circumstances.

Information may come from unexpected sources or take an unexpected form, but if it is material to the licensing decision and therefore to the public health and safety, it must be passed on to the Commission if we are to perform our task.... c Since the initial description of the " full disclosure" requirement in VEPCO, however, reporting obligations for substantial additional categories of significant safety information have been affirmatively established, e.g., 10 CFR 21.21, and 10 CFR 50.72 and 50.73. Both material and reactor _ _ __ _2

L e. . lleenses contain numerous reporting requirements. Most safety information ' which a licensee may develop will ilkely be required to be reported by some specific requirement. Nevertheless, there may be some circumstances where a licensee possesses some residual information which could affect ilcensed activities but which is not otherwise required to be reported. Therefore, the rule provides that if a licensee or an applicant identifies information which has significant implications for public health and safety or the common defense and security, it must be reported to the Commission. The rule makes clear that reporting under this section is not required if such reporting would duplicate information already submitted in accordance with l 1 other requirements such as 10 CFR 20.402.408, 21.21, 50.34, 50.71, 50.72, 50.73, and 73.71. The purpose of the reporting requirement which is being it posed is to provide clear notice that if any applicant or licensee recognizes it has information with significant health or safety o*? common defense or security implications, the information must be reported to the NRC notwithstanding the absence of a specific reporting requirement. Submission of a report depends upon the licensee's recognition of the significance of the information. .The codification. of a full disclosure requirement in this manner should not result 10 additional burdens on applicants and licensees. Licensees and applicants will not be required to develop formal programs similar to those-prescribed under 10 CFR Part 21 to

identify, evaluate, and report information.

What is expected is a professional attitude toward safety throughout a licensee's or applicant's organization such that if a person identifies some potential safety information, the information will be freely _________w

W hy d %y: [, r/ t 7,:,'- ~. ?l j :i - 2 y - 22 c.-: x i m y lf ; %. p i.f M.;- ,P g y -7, y [ 'l Lprovided # thelapprdpriate; company officials-to.. determine? Its significance and .y L jepor'tabill'tyLto the Commission. { While paragraphl(b)\\defersjto the licensee'siJudgment, of the sig' ificancel n n 4 ~ of :the f significance-- of. the - S ' of; Information, Jthe E. licensee's " Identification"

q. [" V(information(need.not-be In.the;. form.of. a specific documented decision before a:

, violationf of the: rule exists for. failure to _ report.. An applicant's or, licensee's.. h> m-recognition of information' as significant could be established by. circumstantial: ~ evidenceDsuch as. specific meetings being held to discuss the. matter, aryalyses-tiz

performed or other internal actions taken,to evaluate the matter.

In additioni MI ab'use of a. Ilcensee's. responsibility. under paragraph (b),. if not punishable.as

a' ' violation of-paragraph (b),. could be addressed by the; Commission 1underilts >

'9 .'. authority _- to Issue' orders to modify,. suspend or revoke a license.

For " -

E e ; example, anLorder; would be Appropriate where the. action 'of a licensee in-not; i:* m recognizing thelsignificance J of. the information, L and falling. to report. it, d

together with~ other relevant facts, raises. serious _ questions about either its

, competence 'or-l's trustworthiness. t L Finally, thel Commission has decided to exercise its. discretion in the V ^ application of the~-_ term material' false statement by limiting. use of the term to . situations. here,there is an element' of_ intent. - A charge of material false w statement:Is equated by the public and'most people in the: Industry with lying -_and intention to mislead.- Yet under the current policy, a material false 1 "-, ' statement > under the _ Atomic : Energy Act can be either an affirmative o+ y statement, oral.as ;well as written, or an omission, and can be unintended and' (1 inadvertent.as well as intentional. l

l l This change recognizes the negative connotations which are associated by the public and the industry with the term material false statement but retains the use of.this label as an additional enforcement tool in egregious situations, i which will be determined on a case-by-case basis. The Commission expects to use the term rarely because with the adoption of this rule, the Commission 4 will have the mechanism to apply the full range of enforcement sanctions to inaccurate' communications or records without reliance on the term material false statement. Consequently, the Commission sees no need to develop a specific definition of the term " material false statement." M The Department of Justice supports this approach in view of the potential.for confusion from j the Commission's use of the term material false statement in its civil. context and criminal prosecutions for material false statements under 18 U.S.C.1001, 1 However, should a violation of - the proposed requirement for. complete and ~ accurate information be labeled as a material false statement, it is expected that the communichtlon failure will be flag rant, involving, for example, instances (1) where an inaccurate or incomplete written or sworn oral statement ls made knowing the statement is inaccurate,or incomplete, or with careless disregard for its accuracy or completeness; or (2) where an 1/ Any characterization or use which the Commission gives to the term ~ material false statement as used in the Atomic Energy Act of 1954, as amended, is, of course, limited to the Commission's civil enforcement actions and has no legal impact on the meaning given to similar terms and phrases used in other statutes, e.g.,18 U.S.C.1001, or on the authority of the Department of Justice to prosecute under such statutes. Thus, regardless of what enforcement action. NRC may take for a communication failure, the failure may be subject to criminal sanctions.

l [.. l -je .y ;, 7, g 1 2 ~ ' y ? y ~ 4 p*. - a'.. gj %'\\ G 4 n [@ lInaccuratef or p incomplete unsworn ioral1:statementL.is madeEwithEai clearly l y m '4' (demonstrable knowledgc of its inaccuracy or Incompleteness'.; t; ~ yg l m 4 ' i i IV.; ; Enforcement Policy h; m a: a. .) l The Comrhission'si existing c material. false statement : policy )is J currently / "H ~. p + - reflected ini the' : General; !. Statement. of 1 Policy, e and Procedure;.forL ' NRC) m + 4 1f Enforcement 1 Actions; 10:CFR Part 2, ~ Appendix C.' (Enforcement; Policy).; j 1 i Modifications 1-..to mthisi policy, to reflect the new rules and the changes to: , _ ~. Commission policy announced here are being published concurrently,with these'- inew rules. - r yi6 f A" violation off the. regulations on. submitting. complete "and accurate.

j

~ i 4:t. _Information,n whether.or,not considered :a material ' false statement,.can result d c .j + 4 j lh the l full

range of enforcement sar}ctions'.

The. labeling of fa communication d 't m i. failure as. a material false ~ statement will be made; on.a. case-by-case. basis and !> A will be ~ reserved.for the most - flagrant: or ; egregious violations. Prior. .Vj l consultation with. -thel Commission will -continue for those' cases in which the 1 staff recommends using the material false ~ statement label.. Violations involving. i

Inaccurate or incomplete information will be categorized based on the guidance l

'in the Enforcement Policy,.Section'111 (Severity of. Violations), new Section VI 1

(Inaccurate and Incomplete Information), and. the revised Supplement Vll.

i l 1 Consistent with; the. existing. supplement,. willful communications failures or-ll g i communications failures regarding very significant information are categorized j %K ~ \\ at. a Severity Level ~ l or 11, and other, significant communication. failures normally will be' cate;gorized at a Severity Level 111. Less significant failures ';~ + Y.: ( .-j. a [i i ? i e

WP& >f -g e + s fi'. 7V l'Y ' 2 ,.:}Mi ' t g' w i - 25- a l v y

f. Lnormallyf. will" be (categorizedfatLa Severity 1 Level 'lVi or V as L appropriate.

Guidance 'on takiNg enforcement action' for incomplete or_. inaccurate information

~ ~ o N and:.lthe Lfailurei to 'provideisignificant informationfidentified bv. a. licensee Lis 1 found j in the; newJ Section: VITand 'the revisedLSupplement? Vll ofl theLrevised y u. Enforcement Policy.; R~ LThe1 Commission recognizes that ; oral Information _may in. some-situations a-p 0<,, be ' inherently. less - reilable than written submittals because ofL the ' absence ' of Lani opportunity) for ~ ? reflection J and management. ' review. . However,s the g Commission must beiable to reiv[on -oral communications from. l'icensee officials n._ e, a- = concerning significant information. 2_/ : Therefore,. In determining whether to - ~ Ltake' enforcement action forian oral statement, consideration may be given to : m (such factors 'as- (1)f tiie ' degree;of knowledge that/ the communicator should W, have _ hadi regarding the matter,'in.vlew of his or her(position,: trainlog,iand . experience,. ' 2) Lthe" opportunity and time avallable prior [to the. commun'ication. ( - to ' assure! the accuracy 'or, completeness : of the information,- (3)..the ' degree' of intent'.' r negligence, if'any,: involved,-(4) the formality of the communication,= o (5) the reasonableness ~of NRC reliance on the.information,. (6) the impor ancei

of the information which was wrong or 'not provided, 'and (7) the reasonable-ness. of: the explanation' for not providing complete and accurate information.

Absent at 'least' careless disregard, an incomplete or inaccurate unsworn f ';

oral statement normally. will not b'e subject to enforcement action unless it 2/-

A licensee official means a first ilne supervisor or above as well as a ~ . llcensed individual; Radiation Safety Officer, 'or a person listed on a license as 'an authorized: user of ilcensed material. I !1 i .g.. _____________u t

7-7g g ?. - 26 I-involves significant information provided by' a. licensee official. However,; F for an-unintentionally. incomplete - orL l enforcement action.may be. - taken L Inaccurate oral statement provided to' NRC by a licensee official or oth'ers on-behalf of 'a licensee, if a record was made of the oral information and~ provided to the licensee' thereby permitting an opportunity-to correct the oral - information, such as if a. transcript of the communication or meeting summary containing' the error was made available to the licensee. .When a licensee has corrected inaccurate or incomplete Information, the decision to issue a citation..for the initial inaccurate or incomplete information. normally will be dependent on the circumstances, including.the ease of. detection. of 'the error, the timeliness of the correction, whether the NRC or the licensee Identified the problem with the communication, and whether the NRC relied on the,information prior to 'the correction. Generally, if -.the - matter was promptly identified and corrected b'y the licensee prior to reliance by ' the ' N RC,. or ' the NRC. raising a question about ' the information, no - enforcement-action 'will be taken for the inittai Inaccurate or incomplete information. On the other hand, if the misinformation is identified after the NRC relles on it, or after some question is raised regarding the accuracy of the information, then some enforcement action normally will be taken even if it .is' in fact corrected. However, if the initial submittal was accurate when != made but later - turns out to be erroneous because of newly discovered information or advance in technology, a citation normally would not be appropriate if, when the new information became available, the initial submittal was *promptly corrected. l l 9

wm..., 7,7' - h< l "'s +' % ((, Q -;27 -- i ~~

The 2 failure'L to correct". inaccurate ior lncomplete lInformation which the a

licensee doesinot identify asjsignificant normally Lwill.not constitute a' separate (violation. However, the circumstances surrounding the failure,to correct' may ~ be; considered l relevant to < thei determination of - enforcement ? action for the-initialg inaccurate orf Incomplete statement.. - For ' example, an unintentionally inaccurate orDincomplete submission lmay be treated as.a more: severe ~ matter lf

the-licensee! !ater. determ'ines ;that the initial submittal' was in error and ^ does Enoti correct it 'or if there' were clear. opportunities; to' identify the error.

If. information; not corrected was~ recognized by a 'licenseeIas significant,; a separate ' citation. may' be:.made for the failure i t6 ~ provide : significant. 4 Information. In anyJ event,. In serious cases where the licensee's. actions!In not. correcting. or, providing information. raise: questions. about its; commitment c, to safety or its fundamental trustworthiness,. the Commission 'may. exercise'its. authority; toe Issue orders modifying, suspending, ' or revoking the ' license. .The: Commission' recognizes thatLenforcement determinations must be made on a ~ case-by-case. basis, taking into. consideration the issues described above. V. Practical impacts Environmental Impact: Categorical-Exclusion a' With respect to the amendments to 10 CFR Parts 30, 40, 50, 60, 61, 70, 1 ~ K ' 71,1 and. 72, the NRC 'has determined that the rule is the type of action i ' described-in l categorical ' exclusion' 10 CFR 51.22(c)(3). ' The NRC has' also determined.that the amendments to 10 CFR Parts 2, 55,110, and 150 meet the ' l J N . eligibility criteria for the categorical exclusion described in 10 CFR l a . l__l __. _. _ _.. _. J

mm 7 .i;N lfi .+ [;, y;; a q-3.. p 1 Lc;:( c,:." ' g e v ' l / . 51.22'(c)(1).- !'Accordingly, 'neither: an-environmentaliimpact! statement.'nor an;: Environmental = assessments has been prepared L in connection' with the! issuance-i

ofx.the rule.

o ll,1. a Paperwork Reduction Act StatementL n LThis ' rule ; adds _ al specific:-Information1: collection. requirem'entl that L is ; u [ subject; to thel Paperworkl Reduction Act : of 1980 -(44' U.S.Ct 3501, et ' seq. ).s I a Libe information" collection:J requiremerits: contained ;ln these Regulations ? have':-

been : approved. byJthe Office of' Management andi Budget; OMB.approvali Nos.
3150;-0017. (Part-30); -0020 (Part.40);-: -0011 (Part 50); -0018 (Part 55); -0127;

, y (Part. 60); -0135 E(Part 61);f-0009.(Part.70); -0008 (Part 71);,-0132L. (PaEt' 72);f P ,,s 3; -0032 (Part 150). ? a s Regulatory ' Analysis. LThe; Commission's curre,nt : requirement. for accuracy. and completenesstof. .information : provided.. to - thet Commission Is specified in the. adjudicatory decision rendered wl' h respect:to.an enforcement action.taken against-Virginia. t Electric Power, Company in 1976. The rule articulates this requirement, which 1 o governs the day-to-day interactions between NRC. personnel and licensees and applicants, in. a' regulation issued under the Commission's general authority to . establish.-. Instructions for the provision of information and. reports to. the Commission rather than by interpretation of the material false statement:provi-' a sion of Section l186.- of the Atomic Energy. Act in an adjudicatory decision. podifying 'this! requirement is preferable to continued reliance on the . ' adjudicatory decision as the only statement of the. requirement. Codification L. 1 1 t

rp

-(

y.w MY '. il' '4 i t 1 p i 1 of fthe : requirement 7: will L. give j.the L regulated L community 1 morel e'xplicit 5: and; g 1 yaccessible ' notice of.the standards of ~ accuracy expected Lof-it and Will* give the? . C'ommiss' ion greater flexibility-to enforce:these stand $rds!w'ithout' unnecessarily - ~ i a'pplyingj theflabel material false ' statement.: to communications fromi licen'seesl and:: : applicants. Ini view s f - the: extensive public comments; and the u o l recommenilations~?of theiAdvisory CommitteeL for Review? of the' Enforcement ' ~ "l ' Policyi received in response to th'e LCommission's : request for ' evaluation <of' the' a'. ,. existing L practice andi proposed L changes' to it',' It'is; apparent;that.. this rule;is ; ,7 ' the. preferred' alternative Tand the. cost entailed ' in.' its promulgation and-1 application 1 is.necessary and ' appropriate.. The foregoing discussion ' constitutes' the(regulatoryf analysis for this rule. Regulatory Flexibility Certification '.y y + 'As requir'ed by the' Regulatory Flexibility ' Act of 1980, 5 U.S.C. 605(b), and; consistent with NRC's Size Standards published December.9,:1985 (50 FR 50241~); the Commission certifies 'that thistrule does : not:. have fa1 significant - economic' impact,upon a substantial number of small ' entitles. The. rule, which. will '.. affect large and small !!censees - alike, - merely codifi'es an existing requirement, established through;an adjudicatory decision that all Information: providEd to the Commission relating to licensed activities or maintain'ed pursuant; to Commission requirements' be complete and accurate'.in all material L ':1 l respects. In addition, the rule will reduce the existing burden on licensees because ' the - full disclosure aspect of the current judicially imposed requirement has'been modified to limit it to that information which the licensee itself has determined.has a significant implication for licensed activities. t g,

m._. @u $, eh ' W .fW d4@pn e i 3 .m u ,p "73'

w

m g& 4 m 'T / r ph ip;. J 8 e , y: n-pyr , q- }Wl, f3j, ' Jet y y .-1308-c ,a ,L, C 'r Y< rp .:1 t ,,'n, > /1.f 'l 3 u 6 .I .i t ,'y _. V b,, j, i s s v. r ?. I I f 'db7 ^ h- ? sf Y '; -l j -- y z - In 9 the.L notice ofi proposed-: rulemakingh thei Commissions'pecificallyn g;w Jh .. i ' [ I, . lK K , "L ; 9; c yp g ? requested comment;on the' economiciimpact 'of thlis actionion'small entitlesb - No 4 g-r .t f, ' ccomments were' receivedlin ' response to thisfrequest. w!, ../ n:; 'h! . t '. f-i .'H k,'c ,_ [F y ~i t

4. ~ s B'ackfit Statement"-

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The rule' codifies ; the (existing}obllgationsTofc pplicants! and ! licensees" tol 4

a 9,, 7 (f Q providet information relailhg to licensed activities which could1have significant : w : m. ' - n y p, ,1 ! Implications (for: those activities.and L to { ensure _tha't all information proylded(to s" g;' L : theLCommission; orfmaintained p'ursuant to' Commission requirements'lsIcomplets 1 e . c 4 andl accurate:'in /allymate'rlal' respects. . Thef Commissions hast determined, a ic

therefore( that the b'ackfithule,.10; CFR 50'.109, does not' apply l to" the 2 r'ule.;

} c .e t, T 4j, - LIST OF SUBJECTS IN L10 CFR' P RTSi2, 30, 40, - e s. .50; 55, 60, 61., 70,171',o 72,110, and,150) 1 ~ Part 2? Administrative practice..'and procedure! Antitrust,9 Byproduct 'g

material,- Classified Information, - Environmental protection, E Nuclear materials,'

h

Nuclear.. power plants and. reactors, Penalty, Sdx1 discrimination, Source 4

p !u' material, Special: nuclear material,. Waste treatment and disposal. ' i w, Part 30. - Byproduct ' material, Government - contracts, intergovernmental ~ relatiksi Isotopes,.' Nuclear materials, Penalty, Radiation.' protection, Report-u, t

ing.and recordkeeping requirements.

Part 40 - Government contracts, Hazardous materials - transportation,. + a L Nuclear: materials, Penalty, Reporting and recordkeeping requirements, Source L 'm, j ' material, Uranium.

l:,

) A f9 m.m' r lYl)0 W - l r s v i

,e e n .n 4l

- 31 --

V m t Part 50 -l Antitrust, ' Classified information,7 Fire prevention,.-Incorpora-- tion by' reference, _ intergovernmental relations, Nuclear < power plants. and- ' reactors,; Penalty, Radiation protection',. Reactor siting. criteria, Reporting and. E recordkeeping requirements, o- - - Manpower training programs,. Nuclear ' tpower < plantsfand? Part-55 ' reactors,; Penalty,. Reporting and recordkeeping requirements. - Part 60 -- High-level waste,; Nuclear power: plants and reactors, Nuclear ~ ? materials,- l Penalty',; Reporting andL recordkeeping requirements, Waste treatment and disposal. 1 Part 61 -' t.ow-level : waste, Nuclear materials, Penalty, Reporting-and, recordkeeping require,ments, Waste treatment and disposal. Part 70 Hazardous ; materials. transportation, Nuclear materials,. containers,. Penalty,.. Radiation - protection, Reporting and' . Packaging and recordkeeping r' requirements,. Scientific equipment, Security measures, Special nuclear material. Part ~ 71. - Hazardous materials transportation,. Nuclear? materlats,- Packaging..and ' containers, Penalty,. Reporting - and recordkeeping requirements. y Part 72 - Manpower. training programs, Nuclear materials, Occupational j j safety and health, Reporting and recordkeeping - requirements, Security. l t l. I measures,. Spent fuel, ' i Part 110 - Administrative practice and procedure, Classified informr".an, i: , Export,. Import, incorporation by reference, Intergovernmental relations, Nuclear materials, Nuclear power plants and reactors, Penalty, Reporting and - recordkeeping requirements, Scientific equipment. l i e e _.b._

i, p ':Y. _ - ;$Jt t ii v p, ? _9y., i s_ w-- as a, Q;;,u(lf.7.wi% /' y o.:. 1) '1 l <+ I,* 'j 1 < h__ > y' i j ' ;,{o ' 4

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(Pa'rty1504-Hazardoustmaterials? -transportation,fintergovernmentalt rela x ' r t %.. a ..'i.. . m. f_

tions? Nuclear materials, Penalty; < Re'por ting Larid Lrecordkeeping. requirements, anm e

6* L Security Jmeasures,2 Sou rce ; material, Special : nuclear material. : C , Forithelreasons Lset :out in: the preamble. and_ under.!the authority 'of.the. l ~' 9: ,s L LAtomic? Energy? ActToffl954; asUamended, the ; Energy 1Reorganliationo Actjof f> i,, t 1974, " as. amended,', andL 5 U.S.C. 552 ' and E 553; ithe T NRC' < is 7 adopting $the ; [,' ' followlbg'. amendmentsTto) 10 CFRL Parts 2',30,40,50,[55,,60J61,70,71',72,: f E, v, 110 andl150.; b f< rPART 2^- RULES OF PRACTICE FOR DOMESTICH LICENSING PROCEEDINGS-L 7y / c . I '. The authority: citation' for-Part 2 is: revised to read as follows: m ' A'uthority: Secs., 161, - 181, ' 68 ' Stat. 948,- 953, as ?amendedi-(42 'u, Q4 U.S.C. 2201, :2231); r ec.191,t as amended,- Pub. L. 87-615, I761 Stat. 409 s g (42 E U.S.C; : 2241);- 7sec. 201, 88 Stat. 1242,L as ' amended L(42. U.S.C. - 5841 );15. U.S.C. ; 552. < L >a,

Section' 2.101 also issued uhder secs. 53, 62, 63;-81; 103', 104, 105,-

681 Stat. : 930, 932,' 933, 935,, 936, 937, 938,. as amended -(42 U.S.C. 2073, u 2092,; 2093, 2111, 2133, 2134, 2135);, sec. :102, Pub. L. 91-190, 83 Stat. 853, 'as amended -(42.U.S'.C. 4332); sec. 301, 88 Stat. 1248 '(421 U.S.C. o. '5871).'. Sections ! 2.102, 2.103, 2.104, 2.105, 2.721 also issued 'under - a ~ - secs.102,.103, L104,105,183,189, 68 Stat. 936, 937, 938, 954,.955, as s IL' amended- (42 U.S.C. 2132, 2133, 2134, 2135, -2233, 2239)..Section 2.105 - also issued under Pub. L. 97-415,.96 Stat. 2073 (42 U.S.C. 2239). it N ' Sections. 2.200-2.206 also issued runder secs. 186, 234, 68 Stat. ' 955, 83 ' c -r ;. gi r _, L - 3 cQ M l

i

( ._g, - 33 u i.y Stat. 444,_ as amended '(42 U.S.C. ; 2236, 2282); sec. L 206, 88 Stat.1246 ,3 - (42 U ~.S.C. - 5846). Sections - 2.600-2.606. also issued under.' sec. 102,' L ections Pub. L. z 91-190, 83_- Stat. 853 as amended (42 U.S.C. 4332). S 2.700a, 2.719 also issued under 5 ' U.S.C. 554. Sections 2.754, 2.'760,- 2.770 also issued under 5 U.S.C. 557. Section' 2.790 also issued under s'ec.103, 68 Stat. 936, as amended (42 ' U.S.C. 2133): and 5 ~ U.S.C. 552. Sections 2.800 and 2.808 - also Issued under E U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553 and 'sec. 29, Pub. L. ~ 85-256,- 71 ' Stat. - 579, as amended - (42 U.S.C'. 2039). Subpart K also issued 'under sec. 1 189, 68 Stat. 955 (42 U.S.C. 2239); Sec.134, Pub L. '97-425, 96 Stat.- 2230 (42 U.S.C,10154). Appendix A also issued under sec. 6, Pub. L. ., 560, 84 Stat.1473 - (42 U.S.C. 2135). Appendix B also issued under sec.10,. Pub. L'. 99-240,.99 Stat.1842 (42 U.S.C. 2021b et seq. ). '2. In - Appendir C ' General Statement of ' Policy, and Procedure for NRC Enforcement Actions to 10 CFR Part 2, Section VI., "Public Disclosure of - Enforcement ctions" is redesignated as Section Vll.; Section Vil. y i " Responsibilities" is redesignated as Section Vill.; Section V'llt. " Vendor ' Enforcement" is redesignated as Section IX.; and a new Section VI entitled " inaccurate and Incomplete information" is added to read as follows: l ?' Appendix C - ' General Statement of Policy and Procedure for - NRC Enforcement Actions l l

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Thei abeling L oflaD p

y =resu'itiinf the; full crange Lofe enforcementisanctions; l a .y ; o communication c failure > asia material : falsei statement 1 willE be made ' on - a ,x N ,t case-by-case tiasis; ands :will; be, reserv,ed L for the : mostj flagranti ob * ,sy [j QN Legregious : violations'. - Violations involving. Inaccurate; ory incomplete, g A ++.

i. information or~ the failure.to' provide 'significant informationjidentified by:

q

a licensee. normally ; will) be ' categorized ' bdsed an ;the. guidance herein,s in P

Section lilL " Severity'of Viol'ations", and in? Supplement.Vll. .The Commission s recognizes that - oral? Information : may'. Inl. some J [.. s situational be; inherently a less. reliable. than' 1 written : submittals' because "ofs F the absence Lof an opportunity. for; reflection: and ; management : review.

U.

n However6the. Commission must. bel able to rely.on' oral. communications? n j-t . ~>- ' from --licensee officials concerning significant E information., A.i licensee. official for ? purdoses of application of the Enforcement-Policy. means? a

4

[ first lineisupervisor or above as well as 'a' licensed. individual, radiation safety officer, or a person listed on 'a license: as an authorized user of. g licensed ' material. Therefdre, in determining whether to take enforce-ment action for an oral statement, ' consideration may be o given to such s% , factors as -(1) the degree - of knowledge that ' the communicator should. j (' '

have had,Lregarding the matter, in view of his or her position, training, m

f Land experience, (2) the. opportunity and time available prior to the p 1, communication to assure the accuracy or completeness of the information, 7. ) f. t'j3 c.J ':# / :l [' \\.

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), 9 "g. p; m Q; ;g - = ['j. s ?! 1 y, l]l U.o (( l a n <m ,5 ? y t p(, fy: ((3) C;the ( degreeCof.intentior' i negligence, ' if E anyd involved,1l (4):0 the ? 4. b. m' formality [of the communicaIlonb (5) theEreasonableness. of LNRC' reliancei h~. R on tlie L:. Information, J(6) the: 'importance7 of' ~ thel information E which [was? oAf i wrong or Enot t provid'ed W and L(7) ! 'the L reasonablenessiofihe L explanation i~. m 'e 4 1 3

for not providing complete and. accurate:Information'.

~~ ' E 1 1 y F ' Absent at leastI careless dis' regard', a an; l'ncomplete i or inaccuratel E 'c Lunsworn oral: statement normally willLnot be. subject to enforcement action 7 (( ' uniess [itilnvolv'es isignificantcinformation provided by! a licensee' official. ~ a However, ~ enforcement : action may ~beiltal<en for qan unintentionally fincomplete/ orf inaccurate 1 oral Estatement J provided ? ko 1 the. l N RC : byfa- - licenseeiofficial or L others : on }. behalf? of. a licensee; --if; a ' record 'was - made;

[

of lthe oral infor'mationland provided s to "the licensee :therebyL permitting. L L y. an' opportunity,toL corr'ectithe oral information,3 such as; if a transcript of '

the communication c or meeting ! summary containing. the erro'r 'was made availableTtoithe liciensee and was.not'subseq'uently-corrected in al timely, w

a V When a Ilcensee has. corrected: inaccurateor incomplete information,. e 4 the decision to issue a citation 1for the initialJinaccurate or incomplete ~ ~~ information normally will be dependent on the circumstances, including the ease ' of. detection of the error, the timeliness of ' the. correction, i whether ' the NRC or the licensee-identified the problem with ~ the [ Communication, and whether the NRC relied on the Information. prior to'- A the correction. Generally, ~ if ' the matter was: promptly identified and - .. corrected by the licensee prior to reliance by the NRC, or the NRC Jraising. a question about the information, no enforcement action will be ' k t.+ (l C:i]:V A }. U'

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m'( 7 5 s %g.r;; j l ,s . s itaken)for; the:Initialiinaccurateiorl Incomplete Information.. Nn the;other. e w T andif *the Misinformation: is; identified Jafter; thel NRC relles oniltfori s h QWW .. l ~ ~ eWW {after someJquestionlis! raised regarding the accuracy 1of theiinformation;- by ~ 3 f thenisomelenforcementjaction ~normallyJwilli e takenleven if it( is;inf fact b t l W J corrected' 3 1 n x . lHowever,)lf theilnitialisubmittal was: accurate when madeL but m .I M stater turns out to be.erroneousf because oflnewlyJ discovered Information, f n 7, e,y~ t ' orisdvance ?in1 technology', a citationJ normallyj would? not be appropriate : p1 6, ;y f if,e when. thel new! Information; became available',, 'the. initial submittallwas. ~ corrected. i, r ~' t 7 ?The failure to correctLinaccurate or incomplete information.which the-h .licenseeLdoes ?notildentify} as significant normallyJwill noticonstitutefal 'd c m separates violation. ;.However, the ; circumstances' surrounding th'ef failure. to) correct: mayj bei consideredL relevant.to the determination ofs enforce-s ment 1 action' for the"initiath inaccurate - or7 incomplete statement. - For Fu y example / an unintentionally ' inaccurate Tor incomplete submission..may-be n ~ treated ~ asi a more severe-matter if. the: licensee later determines. that.the /y. initial Lsubmittal..was in error and. does.f not' correct it orf ifz there were ,f ' ' clear 1 opportunities to - identify the -error. if information not. corrected F' was recognized.by; a licensee as significant, a separate citation may' be t. 4 6 made for,the failure to. provide significant information. 'In any event, In s ,[I;. pq' serious cases 'where the licensee's actions in not correcting or providing ,,3, s. J information'. raise questions.about its commitment. to safety or its Q /..N ipt 'H! .i [y[ fundamental trustworthiness, the Commission may exercise its authority ] t-to ' issue orders modifying, suspending, or revoking the license. The i y } l9 hl rx 1 a s i ' i .I as j j

4< 5 ,c. s A t ' (. .m;e, ._.3, o ~ CdmmissionJecognizes, that enforcement ' determinations' must be. made' on a t 0 ' case-by-case; basis,.taking into consideration the' issues ~ described above. 4 ' Vll. - Public Disclosure and Enforcement Actions ( Vill. Responsibilities 1:

l L IX. Vendor Enforcement

= *. \\.p: .+: n. 3. In Appendix :.C -' General" Statement of PolicyL and' Procedure for NRC - Enforcement ' Actions ' to 10 CFR Part 2, : Supplement 'Vil Severity. L '" Categories, is: revised to read as. follows: ' o ll-Appendix C.- General' Statement' of. Policy and Procedure for NRC-4 Enforcement Actions ['; fi SUPPLEMENT Vil -. SEVERITY CATEGORIES 1 MISCELLANEOUS MATTERS t L.. A. Severity 1 - Violations involving for example: e l. t b p y a: I _i___2.___.___m_._____

y .- 38 -'- X h. 't.- Inaccurate or-incomplete information b which is. provided to. .the NRC (a) deliberately. with. the knowledge of a licensee - official that: the information is. Incomplete or inaccurate,..or (b)' if,theiinformation,.had. It been ' complete. and accurate at the time provided, likely would have resulted~ InTregulatory ac+1on such as an immediate' order required' by. the public health and - safety; ^ p i 2. Incomplete or inaccurate Information which the-NRC requires - be ' kept by ' a licensee which is (a) incomplete or inaccurate because.of falsification by or with the knowledge of'a licensee official, or.;(b) if the information), had it been complete and accurate when reviewed by the N R C', likely would have e resulted in regulatory

action such ' as - an immediate order required by public. health and safety considerations;.

\\ 3 '. Information' which the licensee has identified - as having significant. implications for public health and safety or the common defense and security ("significant information identified by a IIcensee") and which is deliberately withheld from the Commission; 1 y 15/, in applying the examples in this supplement regarding inaccurate or 5 -incomplete information and records, reference also should be made to the guidance in Section VI. l l. L i b

g@: ,yf ]- yy T]

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W 4 g , g;; x y t y1 a . '; i l. ? %%:, b w n: g, 3 '39 _, 1 i % L L" , ;:-y .p. s H ,m 3* 9 t.4.; ) Action.by ; senior l corporate. management? in violation"of JsectionD J t 210.of the ERA against'an employee'; Lor - 7 yy t'.' intentional failure toc provide'.:the ' notice

5.

A : - knowingf 'and-1 .,n

required ' byj Part '21.

x t / 3, ',f B. Severity :11 - Viola' tions. involving: for example: , i ~o 1. Inaccurate ~or.. Incomplete information -whichLis' provided~ to;;the, LNRC H (a) by.'a licensee) official because.of careless.. disregard" sfor!the completeness or.~ accuracyLof th(information, or:(b)1lfe m w. , ;the. information, und it;been complete and accurate at theitimei . provided, likely would. haveL resulted in. regulatory ; action'~ such I y as a show cause order or, a different regulatoryf position; o 1 J2.. Incomplete or'., inaccurate information ' which the LNRC. requires- .i be keptL by. aJ licensee' which is ;(a). incomplete or inaccurate-e because of; careless disregard for. the. accuracy of the information. oni the. part of a licensee official,.or. (b) if the information,- had it been complete and accurate when reviewed. .'by the NRC,.likely would have resulted in regulatory action. ,f such as a show cause order or a different regulatory position;. y ll 1 I 1 i ,1 1 ] l c,:

, g :' & 4 = =-- - (, 3g 2 ob' r (.j;f , j!). ,u a' ' : m L N .j e + +1 m ./'. .4 - {$ M - 401 R 'w p. );s: " 'L;J

3.: . :"Significant j information5 identified by: a ; licensee" and not~

o E !q g = provided, to the ICommission' because of careless; disregard,on( 7 the"part of a licensee official; o i, I

4. 'JAc'ilon g byf plant management above 'first' linej supervision in; i

m. n Fall violation : of : section ; 210 - of the ERAfagainsF an -' employee; or. ~~ n

$ ) $. '

r y .m 5.; ; A ~ failure to. provide' the no' ice required by lPart 21. t h d LC.; : Severity.-ll1'- Violations involving for example: f* J*y.. J' 1. Incomplete nor.' inaccurate - Information; which ' is j provided. to : the. 4. NRCL(a) because of inadequate actions on thelpart of licensee ee officials but 'not ' ' amounting to f a.Severitys LLevel-I - or 11 I . violation, or '.(b) (if the information, Lhad it been complete and , accurate at. the time.provided s. likely: would ' have resulted in a. reconsideration: of a" regulatory position o'r substantisi further 1 s o inquiry. such as 'an additional inspection or. a formal request for information: 2.. Incomplete or inaccurate Information which the NRC requires be kept by a licensee which is (a) incomplete or inaccurate becauseof. Inadequate actions on the part of licensee officials butLnot amounting 'to a Severity Level I or il violation, or (b) If the information, had it been complete and accurate when I.

m.=_- -~ = - - m.

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}" 9 y,' 5(- p f 1 4 <rj k 5 i i ) J i hp [j. ' @ U: Q: 8 .g c41 -'. Q " h.: {g ^ ? (i ( I{ { I i - ' ' reviewed s by". the;. N'RC,. likely) : would f havei resulted o inh a, s y . reconsideration; of a regulatory; position l.or ' substantial further 'gOp s ,. LinqulEy fsuchf asi anl additional n inspection / or[aIformali.' re' ue'st ? V' q y.a - ' g for: information; : 1 1h.o 5> b'

v. -

'4 4 ,'Ll. ..( :,9 j , g([.i W 2 p< 3.- VFailure ; to Lprovide' "significant E information identified?, by) a ; e . licensee"Jto the Commission and not amounting ]to af Severity - +' K,>W J Level Li ' or ;i h.v'iolation;- t -. Y y L4.- Action, by: first-line. supervision in (violation..of:'section 210 of - + U o the ERA 'against an employee: Lor._ S: . ;. f. t i MC . 3. ; s W' [5.:.inadequateV review Jor. failure'. to' review < such that,J if LanL e. 4 ppropriatef review. L had been _ made as required, a u Part: 21L a .q re' port would have been made. ' ~ - D.1 Severity IV Violations involving: for example: kJ '

1. _

incomplete or inaccurate -information of '. more. than minor, _' significance which is. provided to the NRC but not amounting; ta' a Severity. Level'I., 'll, or 111 violation;' 1 p' 2.. Information which.the NRC requires be kept by a licensee. and m ... is incomplete or. inaccurate. and ; of more than minor -which e, K ^ ,,1 ;L l .f

i. L

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x 1 7-k t m .. a - significance. but -notfamounting to a: Severity Level I, ll.forElll' g mg l4 % w .' violation;Jor; .g .-y i i

3. :

Inadequate review or-failure' to: reviewTunder-Part 21: oriothe'rJ 1 p g' ~ T'

procedural! violations ' associated.' with1 Part121L with? morelthan '

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minor. sa'fetyfsignificance.

~ s e r j. lE. Severity.V Violations' involving for example: + ,1 t

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incomplete? or inaccurate inform,ation: : which is ' provided L toithe, i

' Commission and" the incompleteness or -inaccuracy :is,.of minor : e significance; s a s o7

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thformation ;which the NRC' requires.be. kept; by. 'a S l.icensee <a.-

whlch.is: Incomplete or inaccuiate. and t'he. Incompleteness or

.{- -g ^ inaccuracyfis:of minor significance;.or 3u c, ~3. Minor procedural requirements of.Part 21. 1 [- m-4 PART 30 - RULES OF GENERAL-APPLICABILITYTO DOMESTIC d . LICENSING OF BYPRODUCT MATERIAL y* .4. AThe authority citation for Part 30 is revised to read as follows: o u . AUTHORITY: Secs. 81~, 82,161,182,183,186, 68 Stat. 935, 948, 953, 954,I 955, as amended, seci 234, 83 Stat. 444, as amended (42 U.S.C. 2111, o I 1 , ili ! 8 m L p..

rm ,..q-u. p 4- [c y" r g.. 's

/: - 43

-s j nwr + y.. 4 f -: x, y 5 52112M:K2201/2232, a2233,12236, 2282); secs.2201,Jas amended,1 202,J206;;88-95tatZ1242, aslam, ended, L1244,l1246 :(4'2 U!S.C. 5841, 5842, 5846).:. d y " Section :30.71 also Lissued D undero Pub.. Li. 95-601;w sec.10,. 92 Stat. s2951 w , -(42 U sic. -5851). Section 30.34(b) also.lssued lunderJ sec. '184, 68 Stat. 954,. [h ~ 1 Las e amended : (42 : U;S.C. ~2234).

Section 30.611also k issued : under?sec. ?187,-

1 q ' 68. Stat. 955 :(42' 'U.S;Ch 2237). 4 4 n yi

( Fort the : purposes Xof Lsec 223 < 68 Stat. 958,. as _.'amendedo (42 U iS.C.m t 2273);"30.3, 30'.34(b)'. and (c),. 30.41(a) and (c) < and 30.53 are Issued Lunder ?

? ,'.f . sec. 1'61b.', L 68 Stat. ? 948 : as amended: (42 U.S.C. s 2201(b));' 'and 30.6, 30.9, E ,, y . 30.36, 30.51 E3O.52; L 30iS5: and 30.56(b): and- (c) are iss'ued 'under.:sec.161o,- -68. Stat.' 950,fas" amendedi (42 U.S.C. 2201 (o)).. m i .v. v 1 1

5..:

Immediately : following L 6 30.8, a new I' 30.9 is 'added " to read' as. follows: 3 ,sn r s ;I 30.9.CompletenessJan'd accuracy, of information. L c } y; g (a):.infor'mation provided. to the ' Commission by an. applicant for a ' .1 . license. or-' by a licensee or.' information required i by statute or by. the~ 'Commiss' ion'.s regulations,. orders, or license conditions; to be maintained-S I by. the l applicant or the licensee shall. be complete and accurate in all- . material respects. (b) Each ' applicant or licensee shall notify thet Commission -~of? i

information -Identified by the applicant or licensee as having for : the regulated activity. a significant implication for public health and safety or

~ common defense and security. An applicant or licensee violates this + f5F s[ h i

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paragraph L onlylif L the app lrcant or; licensee ; falls z to notify'.the.; Commissions i

..t ...t. 5 ei ..m o g_. . ' = - _ my i ioffinformation ;i that the ~ applicant : orf licenseei hasi identifiedi as ! havinf a'- significant implication! forL public I eakthiandisafety(or common fdefense" ( h and / security. : Notification shall beiprovide'ditotiheVAdministratoriof the: L v. 4, m

appropriate s RegionalD Offics : withing twolworking (da'ys of/ identifying ? the.

g,.. 1 . Information. - Thisi requirement Lis not appilcable ' to information.. whichi Isi ,1 L already; required to beiprovidedi toLthe-Commission by other reporting ori 4 ~ % at S updating Requirements. =;.. r PARTI 40l DOMESTIC LICENSING OF-SOURCE MATERIA'Ll y ~

6.-

LThe authorityt citation for/Part 40 ls revised to read-as follows: Y . t Secs. 62, 63, (64,. 65, 81,.161,; 182,;.183, L186,f 68" AUTHORITY: s L 5 . 55, as amended, secs.11(e)(2),; 83, 1 . Stat.y 932, 933, 935, 948, 953',,9 4, 9 o s 84; Pub.i L. 95-604, 92 Stat. 3033; as' amended, 3039 f sec.; 234, 83; Stat. : .) t o 444, j ass amended ? (42 LU.S.C. L 2014(e)(2),l 2092, 2093,. 2094,.: 2095,L 2111' W u. c ? 2113,- 2114, 2201,. 2232,:2236, 2282);J sec. 2274,. Pub.? L.c 86-373, 73 Stat. 688E(42 U.S.C. '2021); - secs.- 201, as amended, 202, 206, 88f Stat.1242, o as' amended,"1244,1246 (42 U.S.C. 5841, 5842, 5846);isec.1275, 92 Stat. l q m 3021,; as amended by Pub. L. 97-415,. 96 Stat. 2067 '(42 U.S.C. 2022). l Section 40.7 also issued under Pub. L'. 95-601, sec.10, - 92 Stat. 2951 ' (42 U.'S.C. 5851 ). Section 40.31(g) also issued under sec.122, 68 Stat. 939. (42 U.S.C. 2152)..Section 40.46 also issued under sec.184,

t-68 -Stat. 954, 'as amended (42 U.S.C. 2234).

Section 40.71 also issued d under sec.187, 68 Stat. 955 ~ (42 U.S.C. 2237). f f J. A t Q]

N g;, 4 ma /. U. v { {} ? 4 db l s jh: / > t y c 1 . :45 - 6 L 4-LForNhe ' purposes. of; sec; 223, 68. Stat.; 958, as. amended-(42 - U.S.C.-. u ... = ' 2273) G il L4013; l40.25(d)(1)-(3), '.40.35(a)-(d);;40.41 (b);' and '(c),. 40.46; - t h ,40.51(a)"and (c), ;an'd 40.63 are issued under: sec. f161b,. 68 Stat. 948i as? , amended,. '(42 U.S'.C.12201(b)); and-if l40.5, 40.9, 40.25(c),.o (d)(3), - 7. and? (4)i. 40.26(c)(2), 40.35(e),J40.42, 40.61',L 4'0' 62, L40.64 and 40.6E f are. 4 ~ N - issued : under. sec.f1.61o, 68 : Stat.;950,L as:: amended L(42 U.S.C. 2201(o)). 6' -(< l7. immediately L following(i 40.8, a: new 6 40.9 is, added. to read 'as follows: /, ,e I j 6 40' 9 : Completeness.'and' accuracy of information.- o .+ -(a)' $ 1nformation provided:. to ' the Commission by1an applicant forDa'- 4 silcensel oribyJal licensee or' information required byz statute or. by ; the' ,7 # ' Comisission'sl regulations,3 orciers, J or license conditions 1to be ' maintained by1Lthe ia'pplicant or' the licensee: shall be completec and L accurate l In aill f ^ material respects.. ~ -(b) lEach applicant or licensee shall notify < the Commission - of -- s 'information7 identified by theJ applicant or : licensee as having~ for -the. o reg' lated ~ activity. a sig'nificant. Implication for public health and safety or u ~ icommon. defense and: security. - An applicant oro IIcensee. violates this fparagraph only if the applicant or. licensee falls to notify the Commission 1 of Information that the applicant or licensee has ' identified as. having-a m significant implication for. public health and safety or common.. defense j - and !. security. Notification shall be provided to the Administrator of the appropriate Regional Office within' two' working days of identifying the' 1 i . lf e f ..t g

[ y a.

L Information. :. This-. requirement - is - not applicable to - information - which is 4 Jalready, required' to be -provided ' to the Commission by other reporting or-L u'pdating requirements., PART 50 - ' DOMESTIC LICENSING OF PRODUCTION - - AND UTILIZATION ' FACILITIES ' 8. The authority citation for Part 50;is revised to read as follows: AUTHORITY:. Secs. 102, 103, 104, 105,'161, 182, 183, 186, 189, 68 Stat. 936,. 937,' 938, 948, 953, 954, 955,

956, as amended, sec. 234, 83 Stat. 1244, - as - amended (42 U.S.C.- 2132, 2133, 2134, 2135, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88 Stat.

.1242, as amended, 1244,1246 : (42 U.S.C. 5841, 5842, 5846). Section ~ 50.7 also issued under Pub. L. 95-601, sec.10, 92 Stat. 2951. (42 U.S.C. 5851). Section 50.10 also issued' under secs. 101, 185, ' 68 Stat. 936, 955,' as' amended (42 U.S.C. 2131, 2235); sec.102, Pub. L. 91-190, 83 Stat. 853 (42.U.S.C. 4332). Sections 50.23, 50.35, 50.55, 50.56 also issued under sec. 185, 68 Stat. 955 (42 U.S.C.' 2235). 1 Sections 50.33a, 50.55a ' and Appendix Q also issued under sec. 102, Pub. L. ' 91 -190, 83 Stat. 653 (42 U.S.C. 4332). Sections 50.34 and L50.541 also -issued. under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58, 50.91, and 50.92 also issued under Pub. L. 97-415, 96 Stat. 2073 - (42 U.S.C. 2239). Section 50.78 also issued under sec.122, 68 Stat. 939 (42 U.S.C. 2152). Sections 50.80-50.81 also issued under =__.

s -s - m'. ,,.ey g . ^ - ,; y i ,lE 43 W .- 47.-' } 3: .1 sec.j184,f68 L Stat. 954, as. amended (42I U.S.C. -2234). SectionE50.1'03 ~ n, j - '

also issued 1.underf sec.1108', 68' Stat. 939, Lasl amend'ed'-(42 U.S.C. 2138).

.is s r..-.,.4,. t , j., 't [' + ' Appendix : F Lalso ' Issued - under sec. 187;_- 68. Stat.J 955J (42 U.S.C. ' 2237).. s (For the l purposes of'sec. 223, 68 Stat. 958', 'as amended?(42 U.S.'Ci [2273); llL50.10(a); (b), and' i(c), 50.44, 50.46,-- 50.48, L50.54,' 'and !

- 50.8'0(a)l are issued ' under.sec.

161 b,: : 68. '. Stat.' 948L. as (amended; O (42 U.S.C. = ' 2201(b)); il 50.10(b) L andL (c) and -50'.54 are / issued? under-- ^ s - sec..t:1611, 68 Stats 949,: as amended (42 U.S.C.- 2201(i));l and 05 '50.9,. L50.55(e)';. 50) 59(b),T 50.70, 50.71', 50.72,-. l50.73, andi 50.78 Jare..' issued : under sec. 1610, ' 68 : Stat. 950, as ' amended - (42-U.S.C. 2201 (o)).- T. 3 -9.. Immediately.following : 5: 50.8, a newL S.50.9 'Is. added; to read as followsi 5 50.9 [ Completeness - and ~ accuracy.of information.' ~ (a) lhformation" provided. to the' Commissio'n. by; an ?applicanti for a l license 1 or /by1a licensee.or information' required ly-: statute,or ' bye the Commission's. reg'ulations, orders, or' license ' conditions.to be maintained ~

by the applicant or: the Jicensee shall: be' complete and accuratein all material respects.

(b) Each applicant or licensee 'shall notify': the Commission of information identified - by the applicant': or llcensee as having. for' the y. regulated activity a significant implication for public health' and safety or common defense and security. . An applicant or licensee violates this paragraph only if'the applicant or licensee falls to notify the Commission 4 I (1 ..e 1 t i i j 1

^ of information that the applicant ~ or licensee has identified.as having a - significant implication for public ' health ' and. safety or common defense and security. Notification shall be provided to the Administrator of the - appropriate Regional Office within two working days of identifying the information. This requirement is not applicable to information which is already required to be provided to the Commission by other reporting or updating requirements. PART 55 - OPERATORS' LICENSES

10.. The authority citation for Part 55 is revised to read as follows:

AUTHORITY: Secs. 107, 161, 182, 68 Stat, 939, 948, 953, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C 2137; 2201, 2232, 2282); secs. 201, as amended, 202, 88 Stat'. 1242, as amended, 1244 (42 U.S.C. 5841, 5842). Sections 55.41, 55.43, 55.45, and 55.59 also issued under sec. 306, Pub. L. 97-425, 96 Stat. 2262 (42 U.S.C. 10226). Section 55.61 also issued under secs. 186,187,' 68 Stat. 955 (42 U.S.C. 2236, 2237). For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273); 96 55.3, 55.21, 55.49, and 55.53 are issued under sec. 1611. 68 Stat. 949, as amended (42 U.S.C. 2201(l)); and 56 55.9, 55.23, 55.25, and 55.53(f) are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)). 11. Immediately following 9 55.8, a new 5 55.9 is added to read as follows: __-__...m.___._m.________

N 5 55.9 Completeness and accuracy of information. Information provided to the Commission by an applicant for a licent.e or by a licensee or information - required by statute or by the ' Commission's regulations, orders, or license conditions to be maintained by the applicant or the licensee 'shall be complete and accurate in all material respects. PAP.T 60 - DISPOSAL OF HIGH LEVEL RADIOACTIVE WASTES IN f I GEOLOGIC REPOSITORIES; LICENSING PROCEDURES I 12. The authority citation for Part 60 is revised to read as follows: AUTHORITY: Secs. 51, 53, 62, '63, 65, 81,161,182,183, 68 Stat. 929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071, 2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233), secs 202, 206, 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. 91-190, 83 Stat. 853 (42 U.S.C. 4332); sec. 121, Pub. L. 97-425, 96 Stat. 2228 (42 U.S.C.10141 ). For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273); $6 60.10, 60.71 to 60.75 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)). 13. Immediately following 6 60.9, a new 5 60.10 is added to read as follows:

. 9 60.10. Completeness and accuracy. of information. (a) -Information provided to the Commission by.. an applicant for a license or by a licensee or information required by statute or by the Commission's regulations, orders; or license conditions to be maintained by the applicant or the -licensee shall be complete and accurate in all material respects; (b) Each applicant or licensee shall notify the Commission of information identified by the applicant.or licensee as having for the regulated activity a significant implication for public health and safety or common. defense and security. An applicant or licensee violates this paragraph only if the applicant or licensee falls to notify the Commission ~ of.information that the applicant 'or licensee has ' identified as having a significant implication for public health and safety or common defense and. security. Notification shall be provided to the Administrator of the appropriate Regional Office within two working days of identifying the information. This requirement is not applicable to information which is already required to be provided to the Commission by other reporting or updating requirements.' PAR *i bi - LICENSING REQUIREMENTS FOR L/ iD alSPOsnt OF RADIOACTIVE WASTE -14. The authority citation for Part 61 is revised to read as follows: m O

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51 ~-

mc.,.%,y' ^ n F AUTHORITY :-[ Secs. - 53, 57,. 62, 63,J 65,; 81',161, '182,! 183, 68-Stati : uL b' g: 930, 932, 933, 935,; 948, 953 b 954, ' as amended (42. U.S.C. - 2073,: 2077; w 2092,. 2093, 2095,,, 2111, 2201,. 2232i 2233); ; secs. 202, 206,L 88 ' Stat. '1244, 4 u .1246; (42 :U.S.C.' 5842,. 5846); secs.10 and 14; Pub? L. 95-601, 92 Stat. : i i j j 2951 (42 U.S.CZ 2021a and 5851)., For ' th[ purposes 'of1 Sec; 223,. 68 ' Stat., 958, Tas Lamended,. V (42 U.S.C. 2273);. Tablesi ; and - 2. 55L61'.3;.61.'24, 61.25, 61.27(a), 1 61[41 Lthrough E 61.43,. 61.52,: 61.53, l 61.55,: 61.56, and 51.61. through g ~ 61.63c are issued under. sec.161b,. 68 Stat.L 948,- as amended (42 U.S.C. 2201 (b)); [61.9a,161110 through 61;16, 61' 24,;and 61.80 a're issued under? n .sec. <161o[ 68 Stat. 950, 'as amended (42 U.S.C. 2201(o)). ^ m p r15. Immediately following. 5 ~ 61.9, a new 5 61.9a is added to rea'd as' follows: g t i 5 61.9a Completeness and accuracy'.of Information. y l (a) Information provided. to the ' Commission by an applicant for a license or. by a. licensee or information1 required by statute orfby. the Commission's regulations, orders, or license conditions to be 'maintainedL by the applicant or the licensee shall be' complete and ' accurate _ in - all. - material respects. (b) Each applicant or licensee shall notify the Commission of ~ information. Identified by the applicant or licensee as having : for the ? L regulated ' activity a significant' implication for public health and safety or j common defense and security. An applicant or licensee violates this I = - - _ _

<c'.. u.. l , n \\ 'l N ', (_l ? ' '.= c, If ., J ,7 t '; Syy.y ,7 ? 1 ? ^ it; ) h ' ig Y ? w 3 3 r fg / M . 52,_ [ ??; k ~ by.if-_ ' L'H. sd ?l g, l," lf , paragraph Lonly-if:the applicant orflicenseetfalls toL notify.the Commission o IM [ M l I. 4 f# T of'i information i tha't tne'j applicanti ort licensee : has1 identified as e having :'ai, L yw significant implicailoni for..'pubild ' health andf safetyhoricommonlefense? N' ? .g, .., Notification $shalli be providedj to the AdministratorLof the i O f; (appropriatelRegionak O'fficej within twot working days? oI identifying ; th'e and ; security. ' - a e' w .c ~ $ '. f information. This, requirement Lisfnot! applicable 1to? Information Lwhich li . : ig,f

y ' '

.: already1 required to; be l prov'ided. ti the ' Commission by? Nherl reporting'. or - Q. ~ updatingi requirements. - n' np y 't. ,i1 R. PART.7'0... i DOMESTIC'. LICENSING OF SPECIAL NUCLEAR MATERIAL-s 4 L16,i.yThe authority citation for Part 70 -is revised to read.bst follows: ~ i F i.' . AUT'HORITY: Secs. 51 s 53,.161, :182,.183, 68' Stat. 929, 930, 948; "? asl amended, sec. '234,,83 ' Stat. 444, as amended -(42 U.S.C. - ~ 953,.954, 2071, 2073, 2201, 2232, 2233,- 2282);. secs. 2011 as amended; 202, 204, 206, 88 :S. tat'.1242, as amended,. 1244,1245,1246 (42 U.S.C. 5841', 5842, w, 5045,5846).- 4 - Section - 70.'7 also< issued under Pub. -- L. 95-601, sec. 10,. 92 Stat. k. B 29U '(42 U.S.C. 5851). Section 70.21(g)-.also issued zunder sec.122, 68 L A. ! 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. 2077).. Sections 70.36 ' and' 170.44 also. issued under sec.184, 68 Stat. 954, as amended (42 U.S.C. .2234).- .Section 70.61 also. issued under secs._186, 187, 68. Stat. 955 f^I .t. r x__----_-

4 6 p (42 U.S.C. 2236, 2237). Section 70.62 also issued under sec.108, ' 68 . Stat. 939, as amended (42 U.S.C. 2138). For the purposes' of sec. 223, 68 Stat. 958, as amended (42 U.S.C. i 2273); '95 70.3, 70.19(c), 70.21(c), 70.22(a), (b), (d) - (k), 70.24(a) and (b), 70.32(a)(3), (5), (6), (d), and (I), 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 ser.161b,.68 Stat. 948, as amended (42.U.S.C. 2201(b); 55 70.7, 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), and 70.58(a)-(g)(3) and (h)-(J) are issued' under sec. 1611, 68 Stat. 949, as amended (42 U.S.C. 2201(1)); and 55 70.5, 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), and (1), 70.59 and 70.6C(b) and (c) are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)). 17. Immediately following 5 70.8, a new 5 70.9 is added to. read as follows: 5 70.9 Completeness and accuracy of information. (a) Information provided to the Commission by an appilcant for a license or by a licensee or information required by statute or by the Commission's regulations, orders, or license conditions to be maintained L by the applicant or the licensee shall be complete and accurate in all material respects. l l L ______.______._____.D

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,(b): Each ! app,., g _.licant E or Llicensee E shalll notify the - Commission i of-A yn, y 3;* ibf lon [ identified I by :. th'e' ' applicant 1 or licensee j as. havingi for,: the ,.i e, 2%: a regulated? activity. a significant impilcation for publicl health and! safety'orf "s JcommonJ de'fense!: and security. 'An applicant or / licensee'..v'iolates : thlh - Lparagrapilonly:'if the applicant or licensee falls;to, notify thei ommlision: ~ C

offinformationi that the a'pplicant' or licensee. has ' identified; as having a.

6 4 y m h :q . significant f impilcation. for : pubik. health L andL ' safety 1 or ; common. defense - ? ,.and ' security..' Notification' shall',be provided' to' the Administratorfof. the ~ o, ,q, . appropriate) Reg'ional Office within two working fdays of ideritifying the" < y,

s

' ' information. l This requirement is not applicable tolInformation - which is' O 1already l required to.be provided to the Commission by.other' reporting' orJ i L updating. requirements. J$, r y - PART 71 - PACKAGING AND TRANSPORTATION OF RADIOACTI'VE MATERIAL y l .t3 . 18. - The authority citation for Part 71 is revised to read as' followsi. AUTHORITY: Secs. 53, 57, 62, 63,. 81, 161, 182, 1,83, 68 Stat. 930, 932, 933,.935, 940, 953,-954,' as' amended. (42 U.S.C. 2073, 2077, ~ ' 2092, 2093, 2111, 2201, 2232,.2233);. secs. 201,- as amended, 202, 206, 88 l Stat.1242, as amended, 1244,1246 (42 U.S.C. 5841, 5842, 5846). 4 Section 71.97 also ' issued under sec. 301,. Pub. L 96-295, 94 Stat. 789-790. For the purposes of sec. 223, 68 Stat. 950, as amended (42 U.S.C. 2273); il 71.3, 71.43, 71.45, 71.55, 71.63(a) and (b), 71.83, 71.85, { O. 0 ljl 'Y.

e -71.87, 71.89, and 71.97 are issued under sec.161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b)); and St 71.5(b), 71.6a, 71.91, 71.93, 71.95, and 71.101(a) are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)). 19. Immediately following 9 '71.6, a new 5 71.6a is added to read as follows: 6 71.6a Completeness and accuracy of information. (a) Information provided to the Commission by an applicant for a license or by a licensee or informat,,n required by statute or by, the Commission's regulati'ons, orders, or license conditions to be maintained by the ' applicant or.- the licensee shall be complete and accurate in all material respects. (b) Each applicant or licensee shall notify the Commission of information identified by the applicant or licensee as having for the regulated activity a significant implication for public health and safety or. common defense and security. An applicant or licensee violates this paragraph only if the applicant or licensee falls to notify the Commission of information that the applicant or licensee has identified as having a significant implication for public health and safety or common defense and security. Notification shall be provided to the Administrator of the appropriate Regional Office within two working days of identifying the information. This requirement is not applicable to informatl~on which is i ( l i .____ A

m -...-- - -- y 3g h. ,' ^ j q. ((j J t i 6 W ~' h: ' / r g:g g..i ._p i o ,~' MG _ v.k 1 A , ff 49 4 ^ y k -i S6 E -7 L ,,p ~* .t

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[h. s f' ' J $1reak requihedi tol be provided to.' the CommissionLby[other; reporting ori J j 7 b ' < ' M f : dp$ating f requirements.- x i ,.q

7 h': ;

i p d-s? 'PARTL7h LICENSING REQUIREMENTS FOR THE STORAGE OFISPENT' FUEC IN: 3 I' [r '24' W N; INDEPENDENT SPENT FUEL' STORAGE INSTALLATION (ISFSI); 1: = 7 c I l t @m,. r 4 r , 1 n, + . 20.' The authority citation:for'Part 72 is revised to' read as' follows::. ,, y: y m W , : u o

AUTH.ORITY:

Secs;L51,J 53,573)62,.63,.65,69,81,i161;L.182,',83; 184,' '186;1187/189, 68 Statl 929'; 930; 932,. 933, 934; 935',L948,l 953,: 954, L~ .w . a; M. 955,nas Lamended,c sec'.1234, 83 Stat. 444, as amended :(42 U.S.C.? 2071, f

2073,. 2077', ; 2092, 2093, - 2095, t 2099,; 2111, 2201, 2232, 2233;: 2234,E 2236,:

2237,'. 2238, f 2282)k sec. J274, Pub. L. '88-273, 73 Stat. 688, c as amended-y l(42 U.S.C. 2021); sec. - 201 ; as : amended,. 202,. 206;.- 881 Stat. 1242,l as amended,/1244; 1246-(42.U.S.C.: 5841, 5842, 5846); Pub.LLL 95-601, sec. .10, 92iStat. c 2951 (42 U.S.C. 5851); sec. - 102', Pub. L.91-190s 83 Stat.. g[. t. 853 (42 U.S.C.i 4332). Section-72.34. also issued 'under sec; - 189',.68. Stat. - 955 (42 U.S.C. 5 2239); sec. 134,, Pub. L 97-425, 96 Stat. 2230 (42 U.S.C. 101'54 )'. - ' For the. purposes - of sec. 223, 68 Stat. 958' as amended (42 U.S.C.

2273); 55 72.6, 72.14, 72.15, 72.17(d'), 72.19', 72.33(b)(1), '(4), ~(5),

I i (e),- (f),. andl 72.36(a) are issued under sec.161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b)); 55 72.10, 72.15, 72.17 (d ), 72.33(c), b . (d)(1),I(2), -(e), 72.81, ' 72.83, 72.84(a), 72.91 are issued - under 'sec. 1611, 68, Stat. 949, as amended (42 U.S.C. 2201(11); and 55 72.9a, v 5

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i J 3 d[, 72$33(b)(3), - (d)(3), (f),i.72135(b), ' 72.501 :$72.52', 72' 53(a),i.72.54(a),. L 972.55, f 72.56, 72.80'(c),- and. 72.84(b)i are -Issued. under sec.161o; s 68 3 w Stat.3 950; as amendedL(42' U.S.C. 2201(o)). [E ./ 1 c'~ n. ? 211. Immediately follow'ing 5 72.9, ? a new 5 72.9a is,added to read as follows:..

n.:

nw 1 'u q 4 .li-6.72.9a Completeness and accuracy of information. 4 { .!(a) !!nformation provided to -the Commission; by.;an applicant for a

license or by ' a e licensee or lInformation required by statuted ori by the: Commission's regulations, orders,2 or license' conditions tolbe maintainedi U

C by, thei applicant. or the licensee shall be ~ completeL and accurate t n.'all i 4 N'

material respects.

H (b). Each applicant or' licensee shall. notify the Commission of; ~ information ~- identified j by.the ! applicant 1or - licensee : as having, for..' the b - regulated activity - a significant. Implication. for ' public' health arid safety.orj common defense and E security.. An applicant or licensee violates - thisl-paragraph only if the ' applicant or licensee falls to notify the Commission. ..of'information that the applicant or ' licensee has identified as having,a significant ; implication for public - health and ' safety-or' common. defense 3 n L 'and security.- Notification = shall be provided to the Administrator of the Appropriate Regional. Office within two working - days of identifying thet f {g;m i, . Information. This requirement-Is not applicable to information which is-d already ' required to be provided to the Commission by other reporting or . updating. requirements.

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lj: hh4 E ? N,.4 N -15 8 :- ' *, a dNO ( .~ T, , L PARTn110;-TEXPORT AND : IMPORT OF NUCLEAR EQUIPMENTi AND1 MATERIAL Y" D J ' AUTHORITY 1 n, p ").i.i ~ e - ? < ' ,4... bW l 221 : The authority citationL fori Part :110 'is T revised to' read' as-follows: y. 16. ._ >f L' r ,, ' AUTHORITY :' i Secs. 51, 53, :154, 57,;63, 64,;65, 81,c82,L103,1104,

.109,. N1',i126,127, '.128, L129,1161,;181,182,183,;187,1189 : 68' Stat. 929, g

' 930,.: 931, L 932 3 933, '.936,.937, 948; E 953, 954', - 955~, -' 956,f as Lamended g (42JU.S.C.12071, :2073, 2074, 2077, 2092'-2095,; 2111, 2112, 2133i 2134 L ~ c 2139[ 2139a,12141 [2154 2158 L 2201, 2231-2233, 2237,;'2239); y sec.J 201, ' 88: 2 ? Stat.1242, as amended'(42 U.S.C. 5841). i Section'.110'.1(b)(2)Lalso issued under. Pub..:L 96L533, 94 Stat. 3138 es@ I, (42'U.S.C. 2403). Section 110.11 also. Issued under sec'.' 122,. 68 Stat.. l

939 ' (42 U.S.C. '.2152)

~ and ' secs. 54c' and ' 57d., 88 g Stat.r 473, =. 475+ _ (42 U.S.C. L 2074). I Section'~ 110.27 also issued under sec. 309(ah P0b. ~ L; : 99-440~. 1Section /11'0' 50(b)(3) also issued Onder sec. x 123, 926 Stat. hm 142. (42j U.S.C.: 2153).. Section 110.51; also issued under sec.184,. 68 6 Stath 954,~ - as -. amended (42 _ U.S.C. 2234). Section '110.52 also issued ~ 'W underisec.186, 68 Stat. 955 (42 U.S.C'. 2236). Sections 110.80-110.113' also;-issued under 5 U.S.C. 552, 554. Sections 110.30-110.35 also issued 'under 5 U.S.C. 553. s For the purposes of sec. ' 223, 68 Stat. 958,- as amended (42 U.S.C. l 2273);.110.20-110.29, 110.50, and 110.120-110.129 ' also issued under e secs.161b and 'i, 68 Stat. 948, 949, as amended (42 U.S.C. 2201(b) and o

(i)); and if 110.7a and 110.53 are also issued under sec. 161(o), 68 w,

Stat. 950, as amended (42 U.S.C. 2201(o)). r; n'2I t

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Immediately l following' { $ 110.7,: a' new ' l.110.7a.ls E added i to read' : as : y follows:.

a. ;,

,' '5: 110.7a Completeness and accuracy.of. Information. 'T ' (a)~' information provided to the : Commission. by : an applicant. for sal . license' or 'byJ a Llicensee or? Information. required 1 by.. statute 'or by the - i Commission's regulations, orders, or: license conditions to be maintained'- ~ - by the : appil'cantj or the licensee shall be. complete ' and accurate in all^ 7 .i N lmatertal respects.. (b). ' Each / applicant.- or Ilicensee shalli notify :the Commission ' of b.,. F/i -information.: Identified L by 'the

applicant orJ licensee.asi having.for the" o

t, regulated' activity a significant impilcation' for public health and safety or. w common defense: and ~ security.- An applicant 'or licensee. violates this

paragraph onlyllf the applicant.or licensee-falls to notify the. Commission

~ of'information. that the l applicant or licensee has identified' as ihaving. a significant implication-for ' public health' and safety or common defense f - and ' security, < Notification shall be provided to the Administrator of the-

appropriate. Regional: Office within two working days of identifying the Information.-

This ' requirement is not applicable to information which is i

already required to be provided to the Commission by other reporting or

. updating requirements. 'i; 1 4 4

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. AUTHORITY IN AGREEMENT STATES! AND - y }y @

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c f i:1 -3 1 .0 j[k )24.. ;The authority lcitabon (or Part 150 continues to read as follows: h:: i ? AUTHORITY:L - Sec. 161,, 68 i Stat. ; 948, Tas / amended, j sec. 274 3731 i wv a. s jStat. ' 6881(421U.S.C. 2201, ~ 2021);; sec. '201, '881 Stat.<1242,- as amended 4

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Sectionsc 150.3, a 150.15,: 150.15a,~.150.31,.150.32f also L issued under; 3

?. as Lamended,. secs. ; 83, i 84 '.' 92 ' Stat.. f secs. '11e(2),: 81', 68 Stat. 923', 935, _ h .r L3033; L,30393 (42' U.SiCh 2014e(2), 2111, ' 2113, 2114). - Section.150.14 alsol j: ( W - Issued..under: sec;: ~ 53,3 : 68f Stat.: 930; as amended ! (42 'U.S.C. 2073). , Section 150.17a L also :: Issued under ' sec. J 122, L 68 - Stat. s 939. (42. U'.S.C.. qc 2152). Sestion.150.30.' 'also: Issued under i sec. ' 234,. 83. Stat. '444 ' (42. U S.C. :.2282)l.r o. L For the. purposes of sec. 223, 68 Stat. 958,. as amended - (42-U.S.C. - 2273);1150.20(b)(2)-(4) l and.150.21 are issued under sec.161b, 68 : Stat. 948, ; as amended. (42 U.S.C. : 2201(b)); i 150.14 is issued' under sec. f '1611=, :.68L Stat. 949, as amended (42 U S.C. 220l(1)); and 150.16-150.19 .and.:'.h50.20(b) L are L issued under sec. 161o; 68 Stat. 950, as.amendedz L(42 U.S.C. 2201(o)). g+ Yl+ L l ').. i.i 2----.

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e ih e 5 '150.20(b)' "Is,. revised ~. ; to read E as ' f ! 2 5 '. - The. ~ Introductory ( paragraph ~ of : l 4:, < ; . follows*. + H r] c ?.?? r T 6 150.20 Recognition of greement State ' licenses.: t* p (b)= No' withstanding"any jrovision to the contrary In)any specific v t ya .. J l license;. issued l by an Agreement State to.a person, engaging. in activities-L

in. a nonagreement 6 State or' in : offshore watersiunder:, Hefgeneral.

licenses. provided Linit$s.section, the general' licenses provided in dhis'. U i ! section L are i subject i to.the.provislons. of,66 "30.7(a) throughde), l30.9,3 a -t r 30.1,4(d). and j $$ 30.34,f 30.41, and 30.51, to 30.63,. Inclusive, 'of: Part' 30 m 'of this chapter;: 6 40.7(a)1 thpough (e),15 40.9,. and 'll 40.41, 40.51,. y 40.61, 40.63,. Inclusive,. 40.71 L and - 40.81' of Part 40 of this chapter; and I 70.71 (a)?through (e), 6 70.9,. and Il 70.32, 70.42, 70.51 to 70.56, N inclusive, 70.60 -to. 70.62', inclusive, ~ and 70.71 of-' Part' 70 of E t' is h chapter; and to the provisions of. Parts.19, 20, andl71/and 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 y,

provided:in this section:

7, ' Dated' at' Washington, D.C. this day of 1987. For the Nuclear Regulatory Commission. Samuel J. Chilk, Secretary of the Commission. i p: e 1 - _ - - -. -___ -_ -- _ ----_ _ _ w

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' "i' '(DRAFT PUBLIC:-ANNOUNCEMENT) .s N NRC AMENDS 1 REGULATIONS ON LICENSEE m ya "lL OBLIGATIONS ~.TO PROVIDE'.INFORMATION ' The ! Nuclear. Regulato' ry Commission is. amendirig - its regulations-to 1 = clarify y. arid ; ' codify,; 'in :. 'a ' L uniform way, itsi requirements governing ; ilconsees' L obligations? ' to; provide Lthe. Commission, with-complate.E and i ~~ ' nformation,.to L maintEin accurate records' and. 'to. disclose i

accurate information-which they identify as significant for.llcensed activities.

( l- ~ The~. Commission. also : is. revising those ' parts' of 'Its present R r; u Policy relating f-to sanctions if licensees. provide incorrecti Enforcement

n

' material ~ information',Jorally. or iri writing, 'or.prov'ide mater lal information b which' is incomplete or inaccurate' because'..Information has; been omitted.. Material information is< considered ' to be1information which has a natural tendency orf capability to Influence agency' action.. w w Under the amendments, identical.. language is being' placed in. appropriate parts'of the NRC's regulations which: i (1). require ' that all information ; provided ' to the Commission by an ^ 1 applicant for a license or a licensee, or required by the Commission to be maintained by the applicant. or licensee, be complete and accurate in' all material respects; and p E 4 --.._..-..-__.a

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'sI e t , 2-I 'k' gp 1 'b (?.) require l applicants andl. licensees-.to report' tol the NRC4 information I 2 ldentified : by ~ the applicant : ora.llcensee as: having L significantiimplications .forf the.public' health andisafety.: or common defense and-security. o r.< z 1 The lsame J provisions - will. ' apply 1 to 3. applicants. :or. licensees / in':- 1 , Agreement' States--23 Estates 1which' have assumed,l byj agreement,.Lpartf of- " 1 s the NRC's : regulatory

a'uthority-4 hen operating' : under: 1the : NRC's : '

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yI Until now,EtheEobligationhofll applicants.and ' licensees Jto provideL L accurate -information toD the' NRC iwas covered, though not on; a ; uniform d . basis,iin requirements governing : the submission.of appil' cations. which are~ contained ~ in -.varioush parts off the regulations. Lin Laddition, a L1976: . Commission ~ decision in an enforcement action taken.. against Virginia - y Electric 'and: Power Company.(VEPCO) - established. a i comprehensive requirement for applicants and licensees to provide complete and accurate : information: to. the Commission..However, under. VEPCO the term " material false,. statement" has. been 4 applied-to both intentional arid innocent commu'nication errors. 4 Under the amendinents, I he Commission will h' ave the ' mechanism t ~ available to. apply the full range of enforcement sanctions to inaccurate i . communications or. records ' without relying. on the use of the term 1 " material false statement". - Accordingly, because of its negative h connotations, the Commission ' will limit the use of that term to egregious

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. basis. d a ) .n.i.

i. ' {, s 7; The amendments to Parts 2, 30, 40, 50; 55,' 60; 61, 70, 71,J72,110, p.
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-and l'50 of the Commission's' regulations will be-effectivei 30 days f after - publication 'in the Federal. Register on y i. e t 4 e o e i e O O + I' t s 3v L' n l1

d.h.Ae[va svakopaer tudv e N-M 0S W et's~lsars i avsnandet 301.492 1958 ;l ,y n n.. ExtCUT!YE OFFICE OF THE PRESIDENT K OPPICE OF RAANA08 MENT AND SUDeff wasMefefoot,54. Sete8 l ~ s i pg Tg F Etr. ' willian S. Mcdonald Director. offioe of. Administration and. Resources Management ' tr.s. Nuclear Regulatory Commission Washington, D.C. 20555 Dear Mr. McDonaldt We have concluded our review under the Paperwork Reduction'Act - of the tr.s. Nuclear Regulatory Commission's (NRC)' request _ for clearance of an information oollection entitled, # Completeness and Ao. curacy of-Information." may appear to!be~ desirable goals, the Commission has:notWh demonstrated that inocapleteness and inaoonracy have been a ~ problem nor has it explained the proposed reporting requirement evaluate its pi;ctical utility.specifically enough;to the offios of Consequently, we cannot approve.this collection. - On March 4, 1987, the NRC issued a notice of pr_op aed rulemakin (47 Federal Resister 7432-7441, dated March 11, 1987) entitleef ' ' Completeness ans Accuracy of Infonnsation " in which it proposed - to amend its regulations to require 'licen, sees and applicante-for< licensese to provide the Commission with oceplete and accurate information, to maintain accurate records and to provide'for disclosure of information identified by licensees as signific'nt for licensed activities." id. 7433 - a separately the two' paragraph (s in the)new section added.our co identically to parts 30, 40 50 40 70, 71 ~73 theConsission'sregulatione,,in,whkobthen,ewr,eportingand-110 and 150 i recordkeeping requirements are set forth. Completeness and hoeuraov Paragraph (a) of the proposed new section states: Information provided to the Commission by an applicant by statute or by the commission's regulations to befo maintained by the applicant or the licenses shall be complete and accurate in all material. respects. ~

Hereafter licensees.

ENCLOSURE 3

...,...... J p ? [(. W ~ 3 2 Under the. Atomic Energy Act, thel commission is respons ensuring that e licensee's.use of radioactive materials doe.. r adversely affect the health and-safety of the' public nor th s.not common defense and. security of the nation. : Understanda 1' -Commission would like. to have data that are as complete , the q accurate as possible to fulfill this responsibility. are concerned that the requirement is vaguely stated a justified. completeness'and accuracy are open-ended requireme depending on how theyare interpreted, aset. critical for reasoned. decisions--some inoca approximation are' almost always acceptable pleteness and contribution to the decision,the final. increment of inform because the cost of s' that vilk be impossible..to meet; howevercertainly th o =sufficiently_ explain what it expects lice,nsees:to do dif it does not. ' Does the consission expect that an employee's top manage would, implicitly guarantee the completeness and accura y. intornation-provided.by the: employee? information were:to be requested Would it do so even if-the a clearer. statement of the new re,q. and provided,Lorally? Without uirement ~we cannot know what-practical utility alght be.-additional burdens these actions w i i

The discussion in the preamble suggests that the commis current rules do not -ensure adequate completa the data reported or-maintained by licensees. ness and toourac

. justification accompanying f.he request to CMB to approv, y in i Bowever t proposed collection does not discuss any potential problemsj the actual experiences that lead tho' commission to add the new ~*quirement. re j incompleteness in previous,submis'sions of li their records? - Is incompleteness a pervasive problem? commission's work frustrated or hampered by inaccurate data Is the provided to the commission? misled because of poorly kept records?Was the commission been freque of the problem, CN3 cannot determine the need for theWithout a ole information, nor evaluate its utility. Disclosure of significant information Paragraph (b aforementioned)d parts of the connieeion's regula of the new section added to each of the tach applicant or licansee shall notify the commission of information identified by the applicant or licensee as having for the regulated activity a significant implication for pubino health and safety or common defense and security.... to the Administrator of the appropriate Regional officeNo within two working days of identifying the information. __m__.__ Q

5g .} l + 3 This requirement' is not applicable to information which is already required to be provided to the Commission ?other reporting or updating requirements. L Like paragraph (a),. this requireaanti is vague 'and places t burden largely on ~the licensee to. determine what~ cons "significant implication. for public health and safety or . defense and security". The coasequen common expectations can be serious,. however.ces ;of misinterpreting NRC's: J

an order:(to modify,- suspend or revoke a ?1iAccording to the' notice, significance of the information and' failing to -r censeL would be-tgother with other relevant' about either its competence.. facts, raises serious quest 1ons-4 7436)..

.or its. trustworthiness...." (id. Two implications'of this-new disclosure requirement are wor . noting. First the requirement covers'" residue 1 safety information...w,hich is not otherwise required to be repor (14. 7435).1 The Commission, however idoes not identif

might fall. into' this residual categor,y of information,y whatL the Consission provide clarifying examples..-

ner.-does difficult to determine how extensive this cate information ~1s. Consequently practicali utility. determine whether the requirem,ent is justifie i Second the preamble ~ describes some gen. criteria for identifying re, portable information. : The NRC eral "a professional. attitude toward safety throughout a licansee' applicant's organization such that if a-person identifies some or potential safety information, this information will be freely provided to the appropriate company officials to determine its safety,si ificance and deportability to the Commission. significant could. be~ established by the. fact An meetings were held to discuss the matter, analyses performe other internal actions taken to evaluate the matter." While the requirement any create an incentive to report (any id. 7434) that could possibly be construed to have " implications for ng. health and safety or. common defense and security," or, as on u c commenter put it "to overreport"* it may' also inhibit free discussion among, employees in the organization. officials of a licenses to deteruine what informat These general reportable.

Comment of Troy B. Conner, Jr.

Conner & Wetterhahn, P.C. Power Corporation, Public Servic , and 1 l

9 4

In'brief,.then while the motiv ' proposed new se,ction' is clear, ation-behind paragraph ~ (b)~ of the; its content ~is not.- respondent and~that"is vaguely describ Info 41 nation i e 1 related is' not -specific enough to allow;an. evaluation of it practical utility,'astis: required by,the. Paperwork Reduct letL alone:to estlaats its burden. the.'information identified under this. paragr,athe, requirement that ' Moreover within two. days is: unreasonable, unless emergency cond ph is to'be reported. arise making it imperative that the commission be:ias L notified. .q 1 In sum,'while, on the surface' the proposed-rule do not appear un,reaso; broad' objectivss'.of the i

collection requirement falla short of the standards laid d nable, the'information.

the Paperwork Reduction ~ Act and-5 = CFR 1320 4. for, nor the practical utilit Neither'the need. n-1 .' demonstrated.- 'Moreover, ther;y. of, the informatica has been requirement e is no assurance"that the commission's;is the least burdensome necessary to achieve.the. stated objectives, sincerely, q AJtad/ Arthur G. Fraas Acting chief Natural' Resource,s Branch. Office of Information< .and Regulatory Affairs \\ i \\ I 4 a

- - eg UNITED STATES '
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.1 g[ NUCLEAR REGULATORY COMMISSION { l wAsHmoTow o.c.2oses SEP 8 1987 Mr. Arthur G. Fraas, Acting Chief Natural Resources Branch .0ffice of Information and Regulatory Affairs Executive Office of the President Office of Management 'and ' Budget Washington, DC 20503

Dear Mr. Fraas:

This is. in response to your letter dated August 7,1987 in which OMB disa) proved the information. collection requirements ' embodied in the Nuc'ear Regulatory Commission's' proposed rule regarding " Completeness and Accuracy of Information." Because we' believe that your letter is based.upon a misunderstanding of the requirements of the proposed rule and the Commission's intention in promulgating such requirements, we respectfully. request that you reconsider your disapproval of this information collection and authorize its promulgation in final form. Underlying the comments made in your letter appears to be.the b,elief that the Commission's proposed rule entails the creation of new reporting requirements which were not previously in effect. It is critical to emphasize that the. proposed rule creates no reporting obligations that were.not in existence prior to its development; i.e., applicants and licensees are not obligated by. this rule to ffe a single document with the Commission that they were not already under an obligation to submit pursuant to the full disclosure requirements of Section 186 of.the Atomic Energy Act as interpreted in the VEPC0 decision, which is cited and discussed in the preamble to the proposed rule. Virginia Electric & Power Com?any, (North Anna Power Station, Units 1 & 2), C LI-75-22, 4 NRC 480 ('976), aff'd, 571 F.2d 1289 (4th Circuit 1978). ~ As long ago as 1964, the Atomic Energy Commission, predecessor of the N uclear Regulatory Commission, had emphasized.in an adjudicatory decision that in order to discharge the Commission's responsibilities for public health and

safety, it must insist upon total candor in communications between licensees and the Commission, and that "nothing less than candor is sufficient."

Matter of Hamlin Testing Laboratories, Inc., 2 AEC 423, 428 (1964). In the VEPCO decision discussed in the preamble to the proposed rule, the Commission reemphasized the fact that the regulation of nuclear power, implicating as it does the public health and safety, requires " full disclosure of material data" from licensees to I the Commission. (Emphasis added). The Commission further emphasized in. that decision the absolute necessity that licensees " scrutinize their internal procedures to be as sure as they(Emphasis added). possibly can that all submissions to this' Commission are accurate." The Commission quoted with approval the prior Atomic Safety and Licensing ENCLOSURE 4

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-U Appea1L Board Decision in' the -same D YEPC0 case to the effect that cithis obvkus hthat there' must be.~ "com plete ; disclosure 4 cf..'all information-L pertinentJto a" thorough and. sounc Commission ' appraisal" Eof hcensee: " sub mittals. (Emphasis: added). t - AsL a result of these a' adjudicatory dAcisionsiby the ' Commission, licensees < for?many yearsH have been ' under an obligation to supply complete.and. Laccurate information which is. materiali to heensin~g decisions, whether in - the context,.of_. licensing. proceedings : or 1 otherwise. Thus, the provisions of L theoproposed ; rule merely. ~ codify in a eregulatien the completeness and ; accuracy to which..apphcants :and licensees id_egreeL of - are alreadyz required to adhere _by virtue of the VEPC0 deciskn; Thereforei the new g . rule Einvolves no collectkn! of information which was not Ealready( bein'g collected prior to its publication. In order. to reemphasize the point that the. rule creates no new obligations to file' documents with orisaintain records required by the Commission,- the: following : language has been. inserted-in the preamble in ' the-final-rulemaking package:- The ' final rule ~ codifies in a uniform onner an apphcants and -a. heensees obligatkn.. as articulate' in the'.VEPC O. decision', to ensure the completeness and accuracy'of Rs communications with the Commission. The provision does. not create agn new - obhcation for heensees and applicants; rather, it descrioes in a regulatioTrather. rather.than :in an adjudicatory decisioC The standard for completeness ani~ accu' racy to be adhered to. when sujplying information: to (Te agency or when-generating ma' ntainino -records Tequired-to. Te' kept. the 'and Fo'Innission. The standard. described in paragraph (a)Jb -of ITE . proposed

rule,

" complete' andE accurate' in. :all material respects," continues the degree of: accuracy prescribed in the YEPC0 decision; ?that is, any information provided to - the i Cammission or maintained in records required. by _the Commission which has the ability.to influence the= agency in the conduct of its regulatory responsibilities must be complete and accurate. (Emphasis added). k'e have 'also reemphasized in the final rulemaking package that, with respect to paragraph (a) of the proposed rule, the " explicit statement of . standard --of accuracy required for records does not in any way change - existing recordkeeping requirements or add to the kind or nature of records expected to be ' maintained." Likewise, with regard to paragraph -(b) of L the proposed rule, the preamble to the final rule reemphasizes thata Like paragraph (a), paragraph (b) creates no new obligations to report information to the Commission. Rather, it merely codifies in a modified form the " full disclosure" aspects of l

{?L 4, [**5 'y ( s m n ,.3 SEP 8 587' licensee's; and 'apphcant's. obligations. estabhshed ' by the; m VEPC0 deciskn. LI: trust the,information provided above and.the. language to' be included inc the :;fina1L rulemaking packageL clarifies - that :the. new ' ruled obhgates - ap shcants fand, heensees to o do nothing; more1than ~ they were.already . cb'igated:to do by Section 186 of the; Atomic' Energy, Act as interpreted in. the VEPC0 decision. 'i Several. ofher. points'- ~ L comments? on both para.are Lcritica19 to un'derstand 'with regard to your. graphs 1(a);and - (b): of the proposed rule in the-August 7th letter. First,1. withx regard >to paragraph (a), 'tt is important 1 to realize :that ithis paragraph creates nos information collectbn 1 requirementsDat all. Rather,. this provision simply requires. Pat any 1 information : which is.. submitted to.the-Commission; be " comp'.ete :and. . accurate o in all? maFrial ' respects." sin. this? regard, contrary to thei assertion Lon.page 2 of your August 7th letter, neither the VEPC0 decision <which is codtfied in this rule, inor. the proposed Lrule, requires L absolute completeness or total accuracy of information is:not imposing by promulgating.this rule an open-en. and the Commission' information ;be. com ded requirement that: and total accuracy,plete:and accurate.Rather than absolute completeness - the proposed rule requires completeness and. accuracy.

inh all: material respects."

Materiahty' was a term that was discussed in the ;various adjudicatory deciskns leading. to the : Commisskns.~ VEPC O decision in 1976.' The definttkn of the ters " material" which the d Commission: adopted in the :VEPC0 deciskn,1.e., information that has a natural tendency or capability to influence a reasonable agency expert,. cid not originate with the Commission but was taken from a long hne of. s ~~ criminal cases 1which defined that standard.. Thus, the1 term " material" has become a term of.' art in the Commission's enforcement -lexicon and is. well understood by the regulated industry. By emphasizing in the VEPCO ' decision that only material information is required to be reported, the Commis' kn made clear that it did not intend s or. expect absolute completeness. and total accuracy of all informatkn provided to it. As the Commission stated in that decision: By reading material false statements to encompass omissions of material data, we. do. not suggest that unless all'information, however trivial, is forwarded to the agency the 'apphcant will be subjected to civil. penalties.- An omission must be material to the licensing As . discussed above, process to bring Section 186 into play. determina common sense judgments of the context in which information appears.and the stage of the heensing process involved. Materiahty depends upon whether information has a natural tendency or capabihty to influence a - reasonable agency expert. There will be hard cases in determining which omissions are material just as there are hard cases in determining which affirmative false statements are material. Q

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l. '

? x 2 n; -4a SEP/8; ngf e } s -u j s .The existence of hard cases:does not argue' for! changing the'~ H appropriate rule.'of law. .4 > It is alsoLimportant to ~ understand that inour. view, proposed paragraph. ~ f(a) E will result -in.a Lmore; equitable treatment of 11icensees than 1was previously the case. Prior Lto.the formulation of this regulation, failure tofsubmit complete'and accurate information could only bel penalized:by! 1 a the{ Commission under the umbrella term, " material L false. statement" m pursuant: to1Sectionf 186.: of the ! Atomic 1 Energy 3 Act... Underf the s VEPC0: doctrine, the Ctemission notlonly penalized intentional false statements' as L material false ' statements. but: also punished asy material false statementsi 'q those failures to supply complete and accurate information :which were the t Lresult of carelessness and.which did. not 'in_volve :any intention to' mislead; or deceive L the Commission.. . This was) often unfair: to the licensees- . involved, r because' the, term material. false statement' is equated 1 with by ' R (most people j with. lying and an intention to! mislead.: Thus, prior to the

development of. the proposed rule, the citation < of 'a,heensee for a material a

false' statement 1 created an impression in the minds of'~the pubhc which often was not justificd by the circumstances.of theLease. . As you will note, and as is'. emphasized 'in 'the - proposed rulemaking: package, the c pro posed rule 'does -not utihze the ters." material-false istatement". - - By c'ting heensees for. a: failure to provide-complete and/or accuratedinformation. to the Commission ' underf the. ; proposed" rule... the. ~Comaission: will be perettted to -utilizeithe 'same range of enforcement-1 -sanctions. formally _ available to it under the VEPC0 doctrine without unfairlyEand imphedly labeling a heensee as a "har" by. using the term " material-false statement." ~As the preamble to the proposed rule makes clear,'the label " material false statement" will be reserved for: situations ~ in which there is an element of intent-to ~ deceive : or mislead' the - Commission.. 4 LParagraph (b);of the~ proposed rule, as stated above, codifies.in mo'dtfied

form. the ' full' disclosure requirements' of the VEPC0 ' decision.,

As-discussed above, no new burden to report information is embodied in the proposed rule. .Indeed, the burden on hcensees.should be reheved to some extent.' t.icensees have always been 'and continue by virtue of this 1 o , rule to b'e under. the obligation to provide to the' Commission significant safety information not already covered by specific reporting requirements. > However, prior to the promulgation of this rule, licensees and apphcants were not only obhgated to make judgments concerning information that ~ c they1 considered significant and thus reportable, but they were also l forced to-anticipate the after-the-fact judgment of the NRC staff with regard to its own view of the significance of the information. Paragraph l(b)' of the Mcensee -or. proposed rule requires only!that information identified by the applicant as significant be reported to the Commission. We behave it is. easier for a licensee to determine what' the heensee itself beMeves is significant than to determine what another party (the NRC) believes is significant. Moreover, the final rulemaking package gives 1 1 E._2 .2__._

~ g n l\\,, y ";.4" 1 g,

9

^ - 5. - SEP 8 1987 1 guidance,iin :the form' of examples...as toiwhat could indicate recognition _by heenseeL of the significance of the information.- ~In t yourf August 7th ' letter the concern is. also raised that the Commission- ' has7not, identified, with iregard to paragraph (b)f of the proposed 1 rule, p 1 6 what;might fall into the. residual category of information covered. by that! provision. : As set forth in the; preamble,to the q ito1the initial; description oflthe " full disclosure" proposed rule, subsequent' e requirement in VEPCO, a' l

substantial number of specific reporting. requirements have: been-promulgated..;deshng, withL both ' materials and reactor. Mcensees.1. Most ;

1 safety information which a Mcensee 'may.' develop-will hkely. be required to 'l be. reported by one ;or. ized. in ' the ' VEP C O - decisionmore of-the the ? Commisskn recogn "no. setiof specific ? regulations,. however. carefully 1 drawn. can bel expected' to' cover all-possible circumstances.- Information may come from unexpected sources or take' an unexpected ' form,.but if it is. material to the heensing deciskn and therefore to the publicj health and safety it must be passed on to the

Commission if : we are to perform : our task." ' Thus,. there may be' some a

circumstancesJwhere' a licensee' possesse's sig nificant rcsiduali safety: information1not otherwise' required to be reported,1 which could effect Mcensed activtties. and therefore which must be ! reported in the. interest of'. pubhc health and safety. ' Howevertit is' impossible to identtfy in advance i what-residual' information a would be required -to. be reported under paragraph '(b). because it is. by definition,u a category of informat%n - which'we have not previously anticipated. If.we could anticipate the type of residual.information which might be reportable: pursuant to paragraph ~ (b), we. would' already have. promulgated. a 'new specific reporting - requirement to cover it. It bears emphasis ;that.since 'most signific&nt o information Lis already required to be reported by specific ; provisions. already in' the Commissions regulations, reports-of informat%n pursuant.to. { paragraph. (b).of thel proposed rule.should. be infrequent. occurrences.- This, point will be reemphasized in r,esponse tof comments in the final l j rulemaking package. 1 j You question the reasonableness of the two-day reporting requirement for information found by a Mcensee to be-significant under' paragraph (b). It .l .should be stressed that this two working days requirement attaches only upon; a. determination,. by responsible licensee management, that the informat%n has a significant. implication ~ for pubhc health and safety or the common defense and security. Until such a determination has been made, there is no reporting requirement under proposed paragraph (b). Further, the final rulemaking package makes it clear that the reporting j t may be. oral.. Accordingly, two working ' days should ' be ample time in which to report the information, once its significance is recognized. Finally,-'with regard to your comment that the preamble to the proposed rule.did not constttute practical guidance that would. enable officials of a .ticensee to determine what information is reportable, it should be reemphasized (and we will do so in the final rule) that it is only when the applicant or licensee itself by whatever criteria it wishes to use, ]

g; q*i s w u: f ;, i m J + 1 M 6'. LSEP 8.ggp -4 j identifies::lsi nificant; information,'ithat: the' ' reporting obligation?.of t j 1 paragraph ',.(br is. triggered. '(b) ; good :. faith; judgments::Thus.: the N RC: w proposed paragraph b ' by licensees 1 that

information;1n their. possession..isinot significant.

Th'e~ Commission'sl existing : material L false statement policy its e curre reflected :in theVgeneral statementfof policyi-andMprocedureifor NRC enforcement 7 actions in i 10~ < C.F.R.c Part.2,1 A ppendix ' C. ;. To. further = address L heensees;.your L concerns t regarding 7 practical guidance to applicants'.and ' ando to: provide. further guidance? and ' specificity with. regar'd uto. 1 the manner in _ which the. new rules : Will - 1 rulemakingipackalei williinclude modifications:be; implemented the final. ~ whichiwill. be_ pub'ished concurrently with the' new rules.:to! thee enforcement. policy l n 'I trdst thabthe' foregoing information Lwill resolve ; any s mis' unde I and concer'ns you; may have -had with' regard to theiPaperwork. Reduction d , Act implications' of. the proposed rule-' and, that youf will; now ~ be' able. to! . approve publication Lin final. form. - If you have any : questions regarding' this: matter,please do not. hesitate to call. me. t .('1'!: William iG. Mcdonald' -Directo Office of. Administration and Resources: Management Distribution: u suga ~. Mc Donald. R,d W G Mc Donald',g - t LJAAmenta i W A Magee '.J

B Shelton

. JGoldberg,?O G C

SSohinki, OGC MWagner. 0GC 4

i

JGoldberg, OGC, concurred telephonically for SSohinki on 9/4/87.

a' iC - 1:06C

D:

ME::S$ohinki:tk*:WGl Donald .... :......... - - - i-. - -. -. - - - - : - - - - - - - - - - -. :: - - - - - - - - .TE 209/04/87 4 :09/ 7 /87 : OFFICIAL RECORD COPY ~ i _________________________________w}}

ML20236W354

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Dear Mr. Fraas:

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ML20236W354

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