ML20246K925
| ML20246K925 | |
| Person / Time | |
|---|---|
| Issue date: | 08/04/1988 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| Shared Package | |
| ML20245D526 | List: |
| References | |
| FRN-53FR8924, RULE-PR-50 AC73-2-04, AC73-2-4, NUDOCS 8905180182 | |
| Download: ML20246K925 (12) | |
Text
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Qh 'o U D STATES ACTION'- Murley, NR
', f" g. . NUCLEAR REGULATORY COMMISSION -
, .g yg W ASHIN GTON, D.C. 20555
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< Hoyle August 4,.1988. GBarber, NRR cFFICE OF HE I '
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MEMORANDUM FOR: Victor Stello, Jr., Executive Director for Operations FROM: O.$.M g Samuel J. Chilk, Secretary
SUBJECT:
SECY-88-195 - FINAL RULE ON LICENSEE ANNOUNCEMENTS OF INSPECTORS This is to advise you that the commission has not objected to issuance of the~ final rule subject to your incorporating the attached comments.
In addition, due to the changes to pages 3 and 4-of the order,-
OGC should be ted on the adequacy of the Backfit Analysis Statement. NRR) (EDOSuspense: 8/26/88)
Attachment:
As Stated Copies:
Chairman Zech Commissioner Roberts Commissioner Carr Commissioner Rogers
. OGC GPA i
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Pec'd 011. EDO g - {-R % -_
Date _
time-9 MTL e9051eo182 8804o2 B924 PDR hR 53
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.- [7590-02)
.. . NUCLEAR REGULATORY COMMISS10F 10 CFR Part 50 Licensee Announcements of Inspectors AGENCY: Nuclear Regulatory Cort 11ssion 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 Comission, 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 oe granted immediate and unannounced access to licensee facilities 50 as to provide the inspector with unfettered access equivalent to that provided a reguler plant employee following proper identification and compliance with applicable access control procedures. This i 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 imediate, unescorted access to ongoing activities as these activities are being perfonned without advanced notification of the inspection. This is especially important during non-nomal business hours when operating personnel might assume NRC inspectors l would not be on site. !
4 II.
SUMMARY
OF COMMENTS l On March 18, 1988, the Comission Published in the Federal Register (53 FR 8924) a notice of proposed rulenaking on " Licensee Announcement of Ins pectors." The Commission invited the public to conrnent on the proposed rule 1
and received six letter3 of coment by April 18, 1988 (the specified closing i
, date for public comments). After April 18, 1988, 26 additional letters of coments were received. All 32 letters of comments were considered in NRC's review of this final rule. The coments are discussed below.
Coment:
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 plar.t personnel; limit the ability of facility management to perform their safety functions; promote lying among the facility staff; reouire formal training and recordkeeping; and, indicates a distrust of licensees.
NRC Response:
1 NRC does not agree with the coment 3 but to ensure that the intent of the rule is clear and focused, {g.esgJJg heg ievi o g . ;iju.,...
Oce 'y,[he 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 consnunications.
Implementing or enforcing this rule should be no more difficult than implementing or enforcing any rule that involves personnel performance.--it-s' d k c;h::hed tht thh Me deer act e este e =~ *=,"4-- ea+
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q to ce s, s o. ~)o ( Q y ) , p . y m C H sA % *. he w Vc1v 5 s.2 u ' Pk k term, " unfettered access," relates not o ' to initial entrance to the "dd*N 8f perimeter o n . ?0(bN -
nuclear power facility but also to entrance to specific areas g g, 1 within that perimeter l the purpose of conducting an inspection or to obs vecovsv<*LT l licensee and contractor activitle "
Anr.ouncing the presence of an NRC inspe tor k )i M i
handicLps the inspector's ability to conduc ealistic inspection or obse - t~ t aeed '
he's 9. spued tier. The inspector is handicapped because what he or is inspecting r ys , wp viewing may not be representative of the normal or typical licens r WN
(:utte.c4 ' A/ c contractor activities. N "k d #
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 cf his or her perfonnance when the individual realizes he or she is being observed. The NRC inspection program evaluates licensee a
performanceonthebas/sofasamplingre::: 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 r
carry enforcement sanctions should it bE ;11S11y-violated.V 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 i
( emp'oyee would not be required to lie, in response to a question, about the presence of an NRC inspector. Based on this discussion, :: :nt: th:t forr.alized training will"be necessary,,ef est NRC Form 3 s.bedd be modified ter M weed mW to reflect this requirement,e"= - " M:c;;ei,r ,.-
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4 TheNRCdoesnotagreefthatthisrulewillpreventrenagementfromperforming its safety functions. It should be noted, the rule does not affect software security systems which monitor the presence of persor.s in certain areas. Such systems should provide the licensec with needed infonnation 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 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 ections would violate the rule.
In sum, the licensee is prohibited from taking affirrnative 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.
Corrent:
Some comenters expressed a enncern that the rule could raise t
Constitutional questions under the First and Fourth Amendments.
NRC Response:
As discussed abo the purpose of this se is to enhance the QA spections are specifically g credibility of the inspect n process.
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authorized under i 161o of the o Energy Act of 1954, as amended (42 @(
U.S.C. 2201(o)). The rule in way ' fringes upon the rights of licensee empioyees to express pol cal thoughts an eas.
- - N Secondly, the purpose of ' C inspecti s is to ensure public health and safety by checking on compliance 'th ' C requirements designed toward that end, There is no intent to "seart or " seize" evidence of criminal behavior by licensees. (Clear , this does t mean that results of inspections may not or wil not be used as the basis for enforcement.)
In sum, the purpose is to in et r compliance and not to gather evidence of a criminal act(s). Ac rdin , the NRC does not see that any Constitutional issue is raised < this rule.
C0WENT:
A number of comenters suggested that the rule be implemented only by l i
written request of the NRC inspector.
l NRC RESPONSE: l NRC rejects the suggestion. With this suggested modification, the rule wnuld l l only apply to those individuals who had been given notice of the NRC ,
l inspector's presence on site. If implemented, this suggestion would defeat l
the intent of the rule. ;
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I 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
impcet statemen?. nor an environmental assessment has been prepared for this i* 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 Management and Budget approval number 3150-0011.
Regulatory Analysis This final rule will have no significant impact en state and local 1 W
governments and geographical renions. 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 1
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. l
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Regulatory Flexibility Certification J
In accordance with the Regulatory Flexibility Act 5 U.S.C. 605(b), the Comission certifies that this final rule does not have a significant economic i
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impact on a substantial number of small entities. The final rule applies 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 regt1 ations. Therefore, a regulatory flexibility analysis has not been prepared.
Backfit Analysis The NRC has detemined 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 reference, Intergovernmental relations, Nuclear power plants and reactors, Penalty, Radiation protection, Peactor siting criteria, Reporting and recordkeeping requirements.
For the reasons set out in the preamble and under the authority of the Atccic Energy Act of 1954, as amended the Energy Reorganization Act of 1978, as amended, and 5 U.S.C. 552 and 553, the NRC is to adopting the following amerdeent to 10 CFR Part 50.
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', PART 50 - DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES
- 1. The authority citation for Part 50 cortinues to tead as follows:
AUTHORITY: Secs. 102, 103, 104, 105, 161, 182, 123, 186, 189, 68 Stat.
936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 1224 as i amended (42 U.S.C. 2132, 2133, 2134, 2135,.2201, 2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88 Stat. I?t2, 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.
f 853 (42 U.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 l
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.12a5 (42 U.S.C. 5844). Sections 50.58, 50.91, and 50.92 also issued under Pub. L. I 97-415, 96. Stat. 2073 (42 U.S.C. 2239). Section 50.78 also issued under sec. 1 122, 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. VJ8, 68 Stat. 939, as amended (42 U.S.C. 2138). Appendix F l also issued under sec.187, 68 Stat. 955 (42 U.S.C. 2237). I For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273); '
il50.10(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. 929, as amended (42 l
! .. . ~ .
, 11.5.C. 2201(i)); and. ll50.9, 50.55(e), 50.59(b), 50.70, 50.71, 50.72, 50.73,.
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- and 50.78 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C.
2201(o)).
- 2. In 650.70, paragraph (b)(4) is added to read as'follows:.
150.70 Inspections.
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- l (b) * * *
(4)' The licensee or construction pennit ' holder (nuclear power reactor I only) shall ensure that the arriyal and presence of an NRC inspector, who has 3 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. !
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Dated at Rockville, MD, this day of , 1908.
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[ For the Nuclear Regulatory Commission. H l 1
/.<w ,r A f f-o - !
T' ~. \ r Victor Stellb', J[ /
Executive Director for Operations.
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t l Fi .: JSED ALTERNATIVE RE' 3 PollSE TO IST/4TH AMENDMEIC ARG:IMElJT ipov.. C. ,
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.r-cibiiit, af 1h. in.;p<.-etiun t r eest: I n r.pve '. i o n e sre cr-eifi s11:.
- s. .-: gri : . d :n. der 5.-e t j en Jr.;1 . of t.h A p..mi c E n e ro '. Act vf 3 W.4 . as vr.- r J - d . 42 U.S.C. 2201 ( o i . The recoletinn is narr.wly drawn t. t. c h i - v .:.
- - 1. c it inis t e eovernm-nts) i n t e re r1. -
effective 144.' i n s pe /t i vne with.u' t r.f rinei ne or. an individuel's rivht to exi.rau id . :,s 3.nd s pi n i . .n .
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ro- +ct metter. Thus, t h.. ree ul a t i on 4. #7,'JdSp--rai ni trJ V jnt ru<'~ u p..:
ii +- Jom of r; ++:b pr..t e ct ed by t he First Amendnen t to the C. .n et i1 s t i on .
Th e. reculwt:vo deet not rejre eny ..icni fi rent Fourt h Amendn-nt
- < :.r i d-r nt i on r. The A t.orni - Er erry A :t creat+r e v.rvasive rer ul a tory reh+me thst pu t .s l i ce n e.-e r en el-ar n;tice '. h a '. they w131 b- r ub.ieet i<
i r.r ; ec t i on . and the grant.ina of 9 iicense ir cor.ditioned on eint-nt re !- e en abl e.- i n s pect i on r. . Thus. Nhc inspectic.nz of licenseer' premires,t.. .
se..vitiet and records do not require a warrsnt under the Fou rt h Ar.+ .dm ent . United Stat ar Nuclesr Reguist ory Cemmission v Radiatien T+:hnoloey. Jne.. f.19 F.Supp. 1266. 1288-93 (D.N.J. 1981); Union El+rtric Co. (Callsway Flent. Units 1 e C'. ALAE-E.27 (IV9). The new regulstion ir r, re -ronsble exereire of th+ 9 Nhc 126. 139-41 ir.r: ection sot herit y.
Comn.izzi<.n's Int pert ors will continut t< identify the.ms c 1ve r end comply with oth.r reeronable access control mehrurer and. er slways.
it.i:+ctions will be conducted for purpor+s autherized under the At..mic En+ rvy Act and the En+rcy R+c.resni:stion Ac- Th+ recula*. ion dces nct rur. sf eul of the Fourth Amendment t o the Co .rt i ution.
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