ML20246L190

Advises of No Objection to Issuance of Final Rule on Licensee Announcements of Inspectors.Draft Final Rule 10CFR50 Encl

ML20246L190
Person / Time
Issue date:	07/22/1988
From:	Carr K NRC COMMISSION (OCM)
To:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
Shared Package
ML20245D526	List: ML20245D524 ML20245E025 ML20246K469 ML20246K836 ML20246K925 ML20246L190
References
FRN-53FR8924, RULE-PR-50 AC73-2-05, AC73-2-5, NUDOCS 8905180258
Download: ML20246L190 (12)

Text

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.[ 3 , NUCLEAR REGULATORY COMMISSION Murley 9 WASHIN GTON, D.C. 20$$$

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July 22, 1988 OFFICE OF THE COMMISSION E R MEMORANDUM FOR: Samuel J. Chilk, Secretary FROM: Kenneth M. Carr Commissioner

SUBJECT:

SECY-88-195 - FINAL RULE ON LICENSEE ANNOUNCEMENTS OF INSPECTORS I have no objection to the issuance of the final rule. However, I believe the Statement of ConsiCeraticn needs substantial improvement as indicated on the attached markup of the draft Federal Register notice.

I LJ Rn Kenneth M. Carr Commissioner cc Chairman Zech Commissioner Roberts Commissioner Rogers 4D0 OGC i

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NUCLEAR REGULATORY COMMISSION 10 CFR Part 50 Licensee Announcements of Inspectors AGENCY: Nuclear Regulatory Commission i

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-

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. 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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~2-s SUPPLEMENTARY INFORMATION:

1. BACKGROUND By c'arifying the meaning and intent of 10 CFR 50.70(b)(3), this final rule should ensure that NRC inspectors will be granted imediate and unannounced access to licensee-facilities so as to provide the inspector with unfettered 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 enmpromised 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 employecs or contractor employees infomed 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 performed without advanced notification of the inspection. This is especially impcrtant during non-norral business hours when operating personnel might assume NRC inspectors would not be on site.

II.

SUMMARY

OF COMMENTS On Farch 18, 1988, the Comission Published in the Federal Register

{53 FR 8924) a notice of proposed rulemaking on " Licensee Announcement of Inspectors." The Commission invited the public to coment on the proposed rule j and received six letter3 of coment by April 18, 1988 (the specified closing

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4 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 comments are discussed below.

Coment:

A majority of the commenters 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; reouire formal training and recordkeeping;-and, indicates a distrust of licensees.

NRC Response:

1 NRC does not agree with the comment 3 but to ensure that the intent of the

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rule is clear and focused, i'Ws'as a- ead ~ to sew Eu m iy cL*e.fce noin

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• C'ee 'y, e 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 communications.

Implementing or enforcing this rule should be no more difficult than implementing or enforcing any rule that involves personnel performance.-tt-e r:1d b; ::;h::i::d th:t thi: -d e deer act e eete e "-" re,"4 re-a-t h Ir.s teed, i t e.. .e.Ke5 the viet!!itj ef er cri; ting cr@ir;;;nt, i.e., that  !

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perimeter o nuclear power facility but also to entrance to specific areas gu within that perimeter the purpose of conducting an inspection or to obs ve # 0

• covev4.L licensee and contractor activit Announcing the presence of an NRC inspe tor N kW handicaps the inspector's ability to conduc ealistic inspection or obse Aa. 4 e e d has s spu,.ad tion. The inspector is handicapped because what he or is inspecting r A w.94 viewing may not be representative of the normal or typical licens r 4.tta.%W*N Jn contractor activities. N 8'9 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 of his or her performance when the individual realizes he or she is being observed. The NRC inspection program evaluates licensee e

performance on the bas /s of a sampling i ec::: 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

);w ,. - ,u3Ou carry enforcement sanctions should it bE ;11f;11y- vio. lated.Y An honest l 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 i tit y5 ueA uY l fonr.alized training will^be necessary,,er that NRC Form 3 shoutd be modified i to reflect this requirement, we " m :sse g.

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4 The NRC does not agreef 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 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

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would violate the rule.

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.

Corrnent:

, Some commenters expressed a concern that the rule could raise

Constitutional questions under the First and Fourth Amendments.

NRC Response: l k

j As discussed abov the purpose of this r e is to enhance the Q,4 credibility of the inspect n process. spections are specifically

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authorized under 5 161o of the o 'c Energy Act of 1954, as amended (42 p

U.S.C. 2201(o)). The rule in . way ' fringes upon the rights of licensee employees to express pol ical thoughts an eas.

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i C inspecti Ser.ondly, the purpose of s is to ensure public health and safety by checking on compliance 'th ' C requirements designed toward that end. There is no intent to "searc 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 i this rule.

COW.ENT:

A number of commenters suggested that the rule be implemented only by written request of the NRC inspector.

NRC Resp 0NSE:

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 detennined that this change is the type of action described in categorical exclusion 10 CFR 51.22(c)(2). Therefore neither an environmental

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impct statement nor an environmental assessment has been prepared for this  ;

l final rule.

i Paperwork Reduction Act Statement i

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The final rule does not contain a new or amended information I 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. j Regulatory Analysis 4

This final rule will have no significant impact on state and local 1 0/

governments and geographical regions. It may hav 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 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 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 A.- __ - _ - _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ - - _ _ _ _ . - - _ _ . _ . . - - - _- _ _ -

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 regulations. Therefore, a regulatory flexibility analysis has not been prepared.

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 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 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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f-PART 50 - DOMESTIC LICENSING OF 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. ipa 4 as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201, 2232, 2233, 2236, 2P39, 2282); secs. 201, as amended. 202, 206, 88 Stat. 1242, 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 (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 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.

O 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 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);

il50.10(a),(b),and(c), 50.44,50.46,50.48,50.54,and50.80(a)areissued 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. 9E9, as amended (42

30 U.S.C. 2201(1)); and il50.9, 50.55(e), 50.59(b), 50.70, 50.71, 50.72, 50.73, and 50.78 are issued under sec.161o, 68 Stat. 950, as amended (42 U.S.C.

2201(o)).

2. In G50.70, paragraph (b)(4) is added to read as follows:

950.70 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.

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Dated at Rockville, MD, this day of , 1988.

For the Nuclear Regulatory Commission.

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l V s y /

Victor Stellb', J[. , j Executive Director for Operations.

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PP.:?5ED ALTERNATIVE RESPONSE TO IST/4TH AMENDMENT ARGUMENT (pare Di NFf .:espoore -

A .+ f_scuss d above. tho purpose of th- rule is to enhane- i.h. -

cre:.bility vf t he in.pe/ tion process. Inspections are specifically w.; : ri ced under section 161o of t.he Atomic Energy Act vf 1914, as ame-:ed. 42 U.S.C. 2201(c1. The reculation is narrowly drawn to achieve a leritimate governments] int.erest - effective Nhc inspections - wi t. hoot i infr;nging on an .i ndi v id u al ' s right to expr~ss ideas and opinions on any '

sut +et matter. Thus, the regulation k ft,*#-jipe rmi s si vel y intrude u pe. n fre+:om of speech protected by the First Amendment to the Constitution.

T h <. regulation does not raise any e.icn.ificant Fourth Am-ndm-nt c.: r. r . derati on s . The Atomic Er.ergy Act creat es a pr.-rvasiv.s regulatory scht. .e that puts licensees. on clear notice that they will be sub.iect to

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i n r : -- et i on , and the granting of a license is conditioned on consent to reu:'nable inspections. Thus. NRC inspections of licensees' premises, act; . ities and records do not require a warrant under the Fourth Amer.3 ment. United States Nuclear Regulatory Commission v Radiation Tec'r.nology. Inc.. 519 F.Supp. 1266. 1288-91 (D.N.J. 1981): Union Ele::ric Co. (Callaway Plant. Units 1 & 21 ALAB-527, 9 NRC 126, 139-41

( 19 i- ) . The new regulation is a reasonable exercise of the Commission's ins:setion authority. Inspectors will continue to identify themselves and :omply with other reasonable access control measures and, as always, ins:+ctions will be conducted for purposes authorized under the Atomic Enerry Act and the Energy Reorganization Act The regulation does not run afoul of the Fourth Amendment to the Constitution.

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