ML20245D524
| ML20245D524 | |
| Person / Time | |
|---|---|
| Issue date: | 07/11/1988 |
| From: | Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| Shared Package | |
| ML20245D526 | List: |
| References | |
| FRN-53FR8924, RULE-PR-50, TASK-RINC, TASK-SE AC73-2-06, AC73-2-40, AC73-2-6, SECY-88-195, NUDOCS 8807220313 | |
| Download: ML20245D524 (13) | |
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RULEMAKING ISSUE July 11, 1988 SECY-88-195 (NEGATIVE CONSENT)
For: The Commissioners From: Victor Stello. Jr.
Executive Director for Operations
Subject:
Licensee Announcements of Inspectors - Final Rule Purpog: To provide the Commission an opportunity to review and comment on this final rule.
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Background:
In the latter part of 1987, a need was identified for an immediate access rule. The need arose when the l ability of properly badoed NRC inspectors to inspect and access, on an unannounced basis, activities related to the license or construction permit was compromised. This compromise occurred when licensee employees or contractor employees informed others at the facility of the presence of the NRC inspecters.
On March 18, 1988, the proposed rule was published in the Federal Register. The public comment period expired April 18, 1988. Thirty-two letters of public comments were received by June 30, 1988. All public connents received were considered in the final rule.
Discussion: This rule would not add any additional requirements but would clarify existing requirements (10 CFR 50.70(b)(3)). The rule makes it clear that it is not acceptable for nuclear power plant licensees and contractors to widely communicate or broadcast the presence of an NRC inspector on a nuclear power reactor site.
The majority of ccmmenters felt that the rule was unnecessary and characterized it as being too brced and vague. They asserted that it was redundant with current regulations; would lead to unfair and impractical enforcement; be inpossible to implement; inhibit inspector assistance by plant personnel:
Ccntact:
George Barber, NRR 492-12S6 g, /
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L limit the ability of facility management to perform their safety functions; promote lying among the facility staff; require formal training and record-keeping; and, indicates a. distrust of licensees.
In response to the comments, we added to the legis-lative history to express more clearly the intent of the rule.
'We did not agree with comments concerning the difficulty of enforcement or implementation. This i rule should not be more difficult to enforce or implement than other rules involving personnel conduct. There are no training or recordkeeping requirements in the rule and, certainly, no licensee-distrust is intended or implied.
Resources: No additional NRC resources will be necessary to implement this rule. Licensee resources needed for implemention should be minimal, i.e., limited to notifying site and contractor personnel.
Recommendation: That the Connission:
- 1. Approve the final rule that modifies 10 CFR 50.70(b) for publication in the Federal Register.
The ED0 will site this rule within 30 days.if there is no Commission respense.
- 2. Note:
r.. This notice of final rulemaking would be published in the Federal Register allowing 30 days before it becomes effective.
- b. Congressional committees will not be informed.
Coordination: The Offices of Administration and Pesources Management, and Nuclear Reactor Regulation concur in these amendments. The Office of General Counsel has ro legal chjection to these amendments.
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V1' tor Stello, Jr. . /
Executive Director for Operations Fnclosure:
Final Rule - Licensee Announcement cf Inspectors' ;
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3 SECY NOTE: In'the absence of instructions to the contrary, SECY will notify the staff on Wednesday, July 27, 1988, that the Commission, by negative consent, assents to the action proposed in this paper.
DISTRIBUTION:
Commissioners OGC OI OIA GPA REGIONAL OFFICES EDO ACRS ASLBP ASLAP
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NUCLEAR REGULATORY COMMISSION 10 CFR Part 50 Licensee Announcements of. Inspectors i
l AGENCY: Nuclear Regulatory Commission ACTION: Final Rule
SUMMARY
- .The Nuclear Regulatory Commission is amending its regulations to ensure that the presence of NRC inspectors on nuclear power reactor sites is not widely communicated or broadcast to licensee and contractor personnel without the expressed request to do so by the inspector. This change will allow the NRC inspectors, badged at the facility, to observe ongoing activities as they are being performed without advanced notification of the inspection to licensee and contractor personnel. There is a need for this change because of the possible altering of attention and performance levels of a licensee and/
or its contractors when the licensee is aware of NRC surveillance. Past occur-rences where site and/or contractor personnel have been notified of NRC's presence on site have heightened concern in this area.
EFFECTIVE DATE:
FOR FURTHER INFORMATION CONTACT: George Barber, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Telephone (301) 492-1296.
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' '; SUPPLEMENTARY INFORMATION:
- 1. BACKGROUND By clarifying the meaning and intent of 10 CFR 50.70(b)(3), this final rule should ensure that NRC inspectors will be granted immediate and unannounced access to licensee facilities so as to provide the inspector with unfettered 1
access equivalent to that provided a regular plant employee following proper identification and compliance with applicable access control procedures. This rule provides that no access control measures or other means may be employed by the licensee or its contractors to intentionally give notice to other persons of the arrival and presence of a NRC inspector at a facility, unless the licensee is specifically requested to do so by the NPC inspector. There have been instances in the past at several facilities that compromised the ability of properly badged NRC inspectors to inspect and access, on an unannounced ;
basis, activities related to the license or construction permit when licensee employees or contractor employees informed others et the facility of the presence of the.NRC inspectors. This change to 10 CFR 50.70 is to clarify that NRC inspectors, badged at the facility, have immediate, unescorted access to ongoing activities as these activities are being performed without advanced notification of the inspection. This is especially important during non-normal business hours when operating personnel might assume NRC inspectors would act be on site.
'II.
SUMMARY
OF COMMENTS On March 18, 1988, the Commission Published in the Federal Register (53 FR 8924) a notice of proposed rulemaking on " Licensee Announcement of Inspectors." The Commission invited the public to comment on the proposed rule and received six letter of. comments by April 18, 1988 (the specified closing
date 'for public comments). After April 18, 1988, 26 additional letters of comments were received. All 32 letters of comments were considered in NRC's
. review of this final rule. The comments are discussed below.
Comment:
A majority of the comenters believed the rule was unnecessary and characterized it as being too broad and vague. They asserted that it: was.
redundant with current regulations; would lead to unfair and impractical enforcement; be impossible to implement; inhibit inspector assistance by plant personnel; limit the ability of facility management to perform their safety functions; promote lying among the facility staff; require formal training and recordkeeping; and, indicates a distrust of licensees.
NRC Response:
NRC does not agree with the comment but to ensure that the intent of the rule is clear and focused, it has added to the rule's legislative history.
Clearly, the intent of this rule is to prevent site and contractor personnel from wide-spread dissemination or broadcasting the presence of an NRC inspector. Broadcasting, as used here, is defined as unsolicited one-way 1
communications.
Implementing or enforcing this rule should be no more difficult than i implementing or enforcing any rule that involves personnel performance. It should be emphasized that this rule does not create a new requirement.
Instead, it enhances the viability of an existing requirement, i.e., that l
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- , NRC inspectors must have unfettered access to nuclear power reactor facilities pursuant to 10 CFR 50.70(b)(3).
I The term, " unfettered access," relates not only to initial entrance to the perimeter of a nuclear power facility but also to entrance to specific areas within that perimeter for the purpose of conducting an inspection or to observe I l
licensee and contractor activities. Announcing the presence of an NRC inspector I handicaps the inspector's ability to conduct a realistic inspection or observa-tion. The inspector is handicapped because what he or she is inspecting or viewing may not be representative of the normal or typical licensee or contractor activities. ]
Adopting this rule does not indicate a predisposition on the part of the NRC that licensees are not acting properly. It is human nature for an individual to be more conscious of.his or her performance when the individual realizes he or she is being observed. The NRC inspection program evaluates licensee performance on the bases of a sampling process of its activities. It is critical that the sampling portion of the licensee's activities that are relied upon for this evaluation be representative of its overall activities.
Therefore, the rule is more prophylactic than proscriptive, although it does carry enforcement sanctions should it be willfully violated. An honest response by an employee to an innocent inquiry that he/she just saw an NRC inspector is not within the proscriptive perimeter of the rule. Therefore, an employee would not be required to lie, in response to a question, about the presence of an NRC inspector. Based on this discussion, comments that formalized training will be necessary, or that NRC form 3 should be modified to reflect this requirement, are unnecessary.
The NRC does not agrees that this rule will prevent management from performing its safety functions. It'should be noted, the rule does not affect software security systems which monitor the presence of persons in certain areas. Such systems should provide the licensee with needed information on space occupancy in the case of an emergency or evacuation. For those licensees who have these systems in place, or will put them in place, the rule does not affect such l systems. If a licensee were, however, to design or modify these systems (or use them) for the purpose of monitoring the NRC inspector's movements in order to alert other plant personnel of the inspector's whereabouts, those actions would violate the rule.
l In sum, the licensee is prohibited from taking affirmative action which would compromise the NRC inspector's mission of gaining unfettered access to the plant and its various areas of interest to the inspector.
Comment:
Some commenters expressed a concern that the rule could raise Constitutional questions under the First and Fourth Amendments.
NRC Response:
As discussed above, the purpose of this rule is to enhance the credibility of the inspection process. Inspections are specifically authorized under 5 161o of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2201(o)). The rule in no way infringes upon the rights of licensee employees to express political thoughts and ideas.
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'. Secondly, the purpose of NRC inspections is to ensure public health and safety by checkin'g on compliance with NRC requirements designed toward that end. There is no intent to " search" for or " seize" evidence of criminal behavior by. licensees. (Clearly, this does not mean that results of inspections may not or will not be used as the basis for enforcement.)
In sum, the purpose is to inspect for compliance and not to gather evidence of a criminal act(s). Accordingly, the NRC does not see that any Constitutional issue is raised by this rule.
COMMENT:
A number of commenters suggested that the rule be implemented only by written request of the NRC inspector.
NRC RESPONSE:
NRC rejects the suggestion. With this suggested modification, the rule would only apply to those individuals who had been given notice of the NRC inspector's presence on site. If implemented, this suggestion would defeat the intent of the rule.
Environmental Impact: Categorical Exclusion The NRC has determined that this change is the type of action described in categorical exclusion 10 CFR 51.22(c)(2). Therefore neither an environmental J
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impact statement nor an environmental assessment has been prepared for this final rule.
Paperwork Reduction Act Statement The final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1980(44 U.S.C. 3501 et seq.). Existing requirements were approved by the Office of L
Management and Budget approval number 3150-0011.
l Regulatory Analysis This final rule will have no significant impact on state and local governments and geographical regions. It may have significant impact on health, safety, and the environment, but only in the sense of preventing
, adverse impacts on health, safety, and the environment through more effective I
inspections. The rule will make it clear that NRC inspectors are to have a realistic picture of the actual conditions at a site during the inspection process and, therefore, be better able to identify potentially L
dangerous conditions and/or practices for corrective action and to ensure that licensees comply with laws, regulations, and orders administered by the NRC.
This constitutes the regulatory analysis for this final rule. !
Regulatory Flexibility Certification In accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Commission certifies that this final rule does not have a significant economic L
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,' 1 1mpact on a substantial number of small entities. The final rule aoplies only to licensees authorized to construct or operate nuclear power reactors, who are not small- business entities within the meaning of the act or implementing regulations. Therefore, a regulatory flexibility analysis has not been prepared. j Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply
.to this final rule, and therefore, that a backfit analysis is not required for this final rule, because these amendments do not involve any provisions which would impose backfits as defined in 10 CFR 50.109(a)(1).
List Of Subjects In 10 CFR Part 50 Antitrust, Classified information, Fire protection, Incorporation by re3erence, Intergovernmental relations, Nuclear power plants and reactors, Pe1alty, Radiation protection, Peactor siting criteria, Reporting and recordkeeping requirements.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 552 and 553, the NRC is to adopting the following amendment to 10 CFR Part 50.
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PART 50 - COMESTIC LICENSING 0F PRODUCTION AND UTILIZATION FACILITIES
- 1. The authority citation for Part 50 continues 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. 12a4 as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88 Stat. 12a2, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 8546).
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(42U.S.C.4332).-Sections 50.23, 50.35, 50.55, and 50.56 also issued under sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a, 50.55a, and Appendix Q also issued under sec.102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C.
4332). Sections 50.34 and 50.54 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 sec. 184, 68 Stat. 954, as amended (42 U.S.C 2234). Section 50.103 also issued under sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138). Appendix F
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l also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).
For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273);
sl50.10(a),(b),and(c), 50.44, 50.46, 50.48, 50.54, and 50.80(a) are issued under sec. 161(b), 68 Stat. 948, as amended (42 U.S.C. 2201(b)); @!50.10(b) and (c), and 50.54 are issued under sec. 161(1), 68 Stat. 9a9, as amended (42 l
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4 lU.S.C. 2201(i)); and 9550.9, 50.55(e), 50.59(b), 50.70,~50.71, 50.72, 50.73, and 50.76 are' issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C..
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2201(o)).
- 2. In 550.70, paragraph (b)(4) is added to read as follows:
550.70 Inspections.
(b) * *
(4) The. licensee or_ construction permit holder (nuclear power reactor only) shall ensure that the arrival and presence of an NRC. inspector, who has been properly authorized facility access as described in paragraph (b)(3) of this section,- is not announced or otherwise communicated by its employees or contractors to other persons at the facility unless specifically requested by the NRC inspector.
Dated at Rockville, MD, this day of , 1986.
For the Nuclear Regulatory Commission, f
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Victor Stell_o), J . ,./ !
Executive Director for Operations.
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