ML23156A408

PR-073,074 - 57FR49656 - Licensees Announcements of Safeguards Inspections

ML23156A408
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Issue date:	11/03/1992
From:	Chilk S NRC/SECY
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PR-073, PR-074, 57FR49656
Download: ML23156A408 (1)

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ADAMS Template: SECY-067 11/03/1992 PR-073,074 - 57FR49656 - LICENSEES' ANNOUNCEMENTS OF SAFEGUARDS INSPECTIONS PR-073,074 57FR49656 RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

STATUS OP RULEMAKING PROPOSED RULE:

PR-073 1 074 OPEN ITEM (Y/N) N RULE NAME:

LICENSEES' ANNOUNCEMENTS OP SAFEGUARDS INSPECTIONS PROPOSED RULE PED REG CITE:

57PR49656 PROPOSED RULE PUBLICATION DATE:

11/03/92 ORIGINAL DATE FOR COMMENTS: 02/01/93 NUMBER OP COMMENTS:

EXTENSION DATE:

I I

1 PINAL RULE FED. REG. CITE: 58FR29521 FINAL RULE PUBLICATION DATE: 05/21/93 NOTES ON FILE LOCATED ON Pl.

STATUS OF RULE TO PIND THE STAFP CONTACT OR VIEW THE RULEMAKING HISTORY PRESS PAGE DOWN KEY HISTORY OF THE RULE PART AFFECTED: PR-073 1 074 RULE TITLE:

LICENSEES' ANNOUNCEMENTS OP SAFEGUARDS INSPECTIONS ROPOSED RULE SECY PAPER: 92-326 FINAL RULE SECY PAPER: 93-085 PROPOSED RULE SRM DATE:

FINAL RULE SRM DATE:

DATE PROPOSED RULE I

I SIGNED BY SECRETARY:

10/27/92 DATE FINAL RULE I

I SIGNED BY SECRETARY:

06/23/93 STAFF CONTACTS ON THE RULE CONTACT1: PRISCILLA DWYER CONTACT2:

MAIL STOP: 4 E 4 MAIL STOP:

PHONE: 504-2478 PHONE:

DOCKET NO. PR-073,074 (57FR49656)

In the Matter of LICENSEES' ANNOUNCEMENTS OF SAFEGUARDS INSPECTIONS DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 10/28/92 10/27/92 FEDERAL REGISTER NOTICE - PROPOSED RULE 12/01/92 11/25/92 COMMENT OF MARVIN I. LEWIS (

1) 05/17/93 05/17/93 FEDERAL REGISTER NOTICE - FINAL RULE

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NUCLEAR REGULATORY COMMISSION 10 CFR Parts 73 and 74 RIN 3150 - AE27

• 93 MAY 17 P 4 :06 Licensees' Announcements of Safeguards Inspections AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

E ri

SUMMARY

The Nuclear Regulatory Convnission is amending its regulations concerning safeguards inspections at facilities that possess a formula quantity of strategic special nuclear material in unirradiated form.

The purpose of the rule is to ensure that the presence of NRC safeguards inspectors at affected facilities is not announced nor widely communicated to licensee and contractor personnel without the expressed request to do so by the safeguards inspector. The rule will increase the effectiveness of unannounced safeguards inspections and enable a safeguards inspector to obtain a more accurate view of operations at the facility.

EFFECTIVE DATE: (30 days-after pu011cat1on 1n the Federal Register).

FOR FURTHER INFORMATION CONTACT: Priscilla A. Dwyer, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 504-2478.

SUPPLEMENTARY INFORMATION:

Background

The Commission is concerned that the effectiveness of unannounced safeguards inspections at certain facilities required to maintain safeguards may be diminished by the announcement or other communication of the

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presence of a safeguards inspector on-site. without the expressed request of the safeguards inspector.

On November 3, 1992 (57 FR 49656). the Co11111ission published a proposed rule that would prohibit a licensee or its contractors from using an access control measure or other means to intentionally give notice to other persons of the arrival or presence of an NRC safeguards inspector at facilities possessing a formula quantity of strategic special nuclear material in unirradiated form. Similar requirements are in place for power reactor sites as required by 10 CFR 50. 70(b)(4).

Safeguards inspections are comprised of material control and accounting inspections. and physical security inspections. The proposed rule was limited to safeguards inspections due to the expediency by which most safeguards degradation can typically be compensated for after the announcement of the presence of an NRC safeguards inspector. such as. by the posting of a security officer. The proposed amendment would impose only procedural changes and is expected to have no economic impact on affected licensees or the public.

Violation of these rules may subject a person to the criminal penalties in section 223 of the Atomic Energy Act of 1954, as amended. Notwithstanding.

the Conmission reiterates the position stated in the notice of proposed rulemaking regarding enforcement action.

As the NRC said when it promulgated 10 CFR 50.70(b)(4). which prohibits nuclear power reactor licensees from conmunicating the arrival or presence of an NRC inspector unless asked to do so by the inspector:

Recognizing the possibility of inadvertent convnunication of an inspector's presence. the NRC expects to reserve enforcement action [only] for significant intentional violations of the [prohibition]. An honest response by an employee to an innocent inquiry that he [or] she just saw an NRC inspector is not [proscribed by] the rule.

2

Therefore, an employee would not be required to lie, in response to a question, about the presence of an NRC inspector.

(53 FR 42940; October 25, 1988).

Similarly, the NRC recognizes the possibility that some communication of an inspector's presence may even be necessary on occasion. For instance, the person directly in charge of an area being inspected may need to inform certain other people, perhaps higher-level managers, that, *because of the inspection, he or she cannot attend a previously scheduled meeting.

An employee would not be required by the rule to cancel previous engagements without giving timely and sufficient reason.

Public Coment on the Proposed Rule The 90-day public comment period for the rule expired on February 1, 1993. Affected licensees sent no cements on the proposed amendment.

One letter of coment was received from a concerned citizen. The concerned citizen recomended strengthening the rule to prohibit the announcement of inspections by anyone, not just the licensee, and cited what were considered to be general violations of the existing prohibition contained in 10 CFR 50.70 (b)(4). The Comission notes that the coment appears to focus on inspections at power reactor sites, as opposed to the facilities affected by the rule, that is, facilities possessing a formula quantity of strategic special nuclear material in unirradiated form. Further, announced inspections are conducted as part of an overall inspection program.

There are many occasions when it is proper and necessary that a licensee have advance notice of an inspection.

Notice of these inspections may be widely communicated.

The Commission's regulatory authority for prohibiting the announcement of an inspection does not extend beyond its licensees and its own employees.

The extension of this authority, as suggested by the coment, is not within the Commission's Federal mandate.

One change has been made to the rule's text published for comment.

The Commission has clarified the text that describes those facilities affected by amendments to 10 CFR 74.81.

No other changes have been made to the proposed rule.

3

Environmental Impact: Categorical Exclusion The NRC has determined that this amendment is the type of action described in categorical exclusion 10 CFR 55.22{c){2). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for the final rule.

Paperwork Reduction Act Statement This final rule contains no new nor amended information collection requirements and, therefore, is not subject to the requirements of 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 numbers 3150-002 and 3150-0123.

Regulatory Analysis This final rule will have no significant impact on State and local governments and geographical regions. It may have an 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 safeguards inspections at affected facilities. The final rule makes it clear that NRC safeguards 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 conditions and/or practices for corrective action, and to ensure that licensees comply with laws, regulations, and orders administered by NRC.

The final rule imposes procedural changes only on affected licensees at minimal or no cost. This constitutes the regulatory analysis for the final rule.

Regulatory Flexibility Act Certification As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)),

the Commission certifies that this rule will not have a significant economic 4

impact on a substantial number of small entities. The final amendments will not impose significant cost on any affected licensees regardless of size.

Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this final rule because affected facilities are not licensed under 10 CFR Part 50 and, therefore, a backfit analysis is not required. This final rule affects only those facilities that possess a formula quantity of strategic special nuclear material in unirradiated form and imposes only procedural changes at minimal or no cost to the licensee.

List of Subjects 10 CFR Part 73 - Criminal penalties, Hazardous materials -

transportation, Incorporation by reference, Nuclear materials, Nuclear power plants and reactors, Reporting and recordkeeping requirements, Security measures.

10 CFR Part 74 - Accounting, Criminal penalties, Hazardous materials -

transportation, Material control and accounting, Nuclear materials, Packaging and containers, Radiation protection, Reporting and recordkeeping requirements, Scientific equipment, Special nuclear material.

For the reasons set out in the preamble and under 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 adopting the following amendments.

Part 73 - PHYSICAL PROTECTION OF PLANTS AND MATERIAL

1. The authority citation for Part 73 continues to read as follows:

AUTHORITY:

Secs. 53, 161, 68 Stat. 930, 948, as amended, sec. 147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2201); sec. 201, as amended, 204, 88 Stat.

1242, as amended, 1245 (42 U.S.C. 5841, 5844).

Section 73.1 also issued under secs. 135, 141, Pub. L.97-425, 96 Stat.

2232, 2241 (42 U.S.C. 10155, 10161). Section 73.37(f) also issued under sec.

5

301, Pub. L.96-295, 94 Stat. 789 (42 U.S.C. 5841 note). Section 73.57 is issued under sec. 606, Pub.L.99-399, 100 Stat. 876 {42 U.S.C. 2169).

2. In §73.46, paragraph {d){l5) is added to read as follows:

§73.46. Fixed site physical protection systems, subsystems, components, and procedures.

(d)

(15) The licensee may not announce or otherwise communicate to its employees or site contractors the arrival or presence of an NRC safeguards inspector unless specifically requested to do so by the NRC safeguards inspector.

Part 74 - MATERIAL CONTROL AND ACCOUNTING OF SPECIAL NUCLEAR MATERIAL

3. The authority citation for Part 74 continues to read as foll ows:

AUTHORITY: Secs. 53, 57, 161, 182, 183, 68 Stat. 930, 932, 948, 953, 954, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2073, 2077, 2201, 2232, 2233, 2282); secs. 201, as amended 202, 206, 88 Stat. 1242, as amended, 1244, 1246 {42 U.S.C. 5841, 5842, 5846).

4. In §74.81, paragraph (d) is added to read as follows:

§74.81 Inspections.

(d)

At a facility using and possessing a formula quantity of strategic special nuclear material in unirradiated form, the licensee may not announce or otherwise co11111unicate to its employees or site contractors the arrival or presence of an NRC safeguards inspector unless specifically requested to do so by the safeguards inspector.

Dated at Rockville, MD this 7

day of May 1993.

r Regulatory Commission.

Commission 6

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• 92 DEC -1 Pl2 :QS Marvin I. Lewis 7801 Roosevelt Boulevard Suite 62 Phila., PA 19152 (215)624-1574 Secretary of the Commission USNRC Washington, D. C. 20555 Dear Mr. Secretary; Please accept this letter as my comments on the Proposed Rule I

CFR Parts 73 and 74 <RIN 3150-AE27 FR Nc,tice 11-3-92.)

Licensee announcements of safeguards inspections have been a f

• r ce. The so-called unannounced inspections were known on a

~egular basis to operator management well before the inspection.

I was told that unannounced inspections were communicated to operator management 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> before the inspection. Whether this is in technical violation of 10 CFR 50.70(b) (4), I really don't know. The ipso's and mendacious wording of the background document seems to say that we will continue as we have with just the patina of truthfulness. The rule seems to suggest that arrival or impending inspection may be communicated or announced as long as the licensee is not directly involved in the announcement or communication.

A more effective rule is that the inspection must not be communicated or announced by anyone or the licensee is in violation of the rule.

/;_7vZtted, 11-25-92 JAN 2 1 1993 Acknowledged by card.................................

U.$. NUCLEAR REGULATORY COMMISSION OOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION DDc:lrnent Statistics Postmffl Datt // /,-s/ ~ 1-.

Copies Received_.:..../ _____ _

Ad<fl Copies Reproduced _'l _

____ ~

Special Distriootion Pr;. ~ PtJ,Z...

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AGENCY:

ACTION:

SUMMARY

DOCKET NUMBER Pl

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p;~C,POSED RULE 7S--.~ 1 I (61 Ff.. ~1t1b 56 NUCLEAR REGULATORY COMMISSION 10 CFR Parts 73 and 74 RIN 3150 - AE27

[;0CKL1tD JJ.51IRC Lt590 - 01]

• 92 OCT 28 p 4 :25

. r*ic Licensees' Announcements of Safeguards Inspect :.'q,'~

Nuclear Regulatory Commission.

Proposed rule.

The Nuclear Regulatory Commission is proposing an amendment to its regulations concerning fuel cycle facilities. The proposed rule would ensure that the presence of NRC safeguards inspectors at certain fuel cycle facilities is not announced or widely communicated to licensee and contractor personnel without an expressed request to do so by the inspector.

The proposed rule would increase the effectiveness of unannounced safeguards inspections and enable a safeguards inspector to obtain a more accurate view of affected facilities.

~, I l&f:J DATES:

Comments must be received on or before (90 days from date of publication). Comments received after this date will be considered if it is practical to do so, but only those comments received on or before this date can be assured of consideration.

ADDRESSES:

Comments or suggestions regarding the proposed amendments should be sent to the Secretary of the Commission, U.S. Nuclear Regulatory Commis-sion, Washington, DC 20555, Attention: Docketing and Service Branch.

Copies of comments received will be available for inspection and copying for a fee in the NRC Public Document Room at 2120 L Street. NW. (Lower Level), Washington, DC 20555.

FOR FURTHER INFORMATION CONTACT:

Priscilla A. Dwyer, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Telephone {301) 504-2478.

SUPPLEMENTARY INFORMATION:

This proposed rulemaking would apply to fuel cycle facilities authorized to use or possess a formula quantity of strategic special nuclear material.

The NRC proposes to prohibit a licensee or its contractors from using an access control measure or other means to intentionally give notice to other persons of the arrival or presence of an NRC safeguards inspector at an affected facility unless the licensee is specifically requested to do so by the NRC safeguards inspector. The proposed rule is intended to increase the effectiveness of unannounced safeguards inspections and to enable a safeguards inspector to get a more accurate view of normal operations at affected facilities. The rule is needed for safeguards inspections because of the quickness by which most safeguards degradations can typically be compensated after announcement of an inspector's presence (e.g., through the posting of a security officer) thus frustrating the effectiveness of the inspection. These proposed amendments are intended only to impose procedural changes to the way a licensee responds to the presence of an NRC safeguards inspector at affected fuel cycle facilities. It is anticipated that there will be minimal or no cost associated with implementation of these proposed amendments. The NRC may, in the future, consider the need for similar requirements for safety inspections at affected sites.

As the NRC said when it promulgated 10 CFR 50.70 (b)(4), which prohibits nuclear power reactor licensees from communicating the arrival or presence of an NRC inspector unless asked to do so by the inspector (see 53 FR 42939, 42940, October 25, 1988), the NRC expects to reserve enforcement action only for significant intentional violations of the prohibition.

For example, the NRC recognizes the possibility of inadvertent communication of an inspector's presence.

An honest response by an employee to an innocent inquiry that he just saw an NRC inspector is not proscribed by the rule. Therefore, an employee would not be required to lie, in response to a question, about the presence of an NRC inspector. Similarly, the NRC recognizes the possibility that some communication of an inspector's presence may even on occasion be necessary.

For instance, the person directly in charge of an area being inspected may need to inform certain other people, perhaps higher-level 2

managers, that, because of the inspection, she cannot attend a previously scheduled meeting.

An employee would not be required by the rule to cancel previous engagements without giving timely and sufficient reasons.

Environmental Impact: Categorical Exclusion The NRC has determined t hat this proposed change is the type of action described in categorical exclusion 10 CFR 51.22(c)(2). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for the proposed rule.

Paperwork Reduction Act Statement This proposed 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.). Existi ng requirements were approved by the Office of Management and Budget approval numbers 3150-002 and 3150-0123.

Regulatory Analysis This proposed rule would have no significant impact on state and local governments and geographical regi ons.

It may have an 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 safeguards inspections at affected fuel cycl e facilities. The proposed rule would make it clear that NRC safeguards inspectors are to have a realistic picture of the actual condi tions at a site during the inspection process and, therefore, be better able to identify conditions and/or practices for corrective action and to ensure t hat licensees comply with laws, regulations, and orders administered by the NRC. It is anticipated that this proposed rule, if promulgated, would impose procedural changes only on affected licensees at minimal or no cost. This constitutes the regulatory analysis for this proposed rule.

3

Regulatory Flexibility Certification As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)),

the Commission certifies that this rule, if adopted, will not have a significant economic impact on a substantial number of small entities. The amendments being proposed would not impose additional cost on any affected licensees regardless of size.

Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this proposed rule, and therefore, that a backfit analysis is not required for this proposed rule because these amendments do not involve any provisions which would impose backfits on nuclear power plant licensees.

This proposed rule affects only fuel cycle facilities that use or possess a formula quantity of strategic special nuclear material and is anticipated to impose only procedural changes at minimal or no cost to the licensee.

List of Subjects 10 CFR Part 73 - Criminal penalties, Hazardous materials - transportation, Incorporation by reference, Nuclear materials, Nuclear power plants and reactors, Reporting and recordkeeping requi rements, Security measures.

10 CFR Part 74 - Accounting, Criminal penalties, Hazardous materials -

transportation, Material control and accounting, Nuclear materials, Packaging and containers, Radiation protection, Reporting and recordkeeping requirements, Scientific equipment, Special nuclear material.

For the reasons set out in the preamble and under authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, the NRC is proposing to adopt the following amendment to 10 CFR Parts 73 and 74.

4

PART 73 - PHYSICAL PROTECTION OF PLANTS AND MATERIALS

1. The authority citation for Part 73 continues to read as follows:

AUTHORITY: Secs. 53, 161, 68 Stat. 930, 948. as amended. sec. 147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2201); sec. 201, as amended, 204, 88 Stat.

1242, as amended, 1245 (42 U.S.C. 5841, 5844).

Section 73.1 also issued under secs. 135, 141, Pub. L.97-425, 96 Stat.

2232, 2241 (42 U.S.C. 10155, 10161). Section 73.37 (f) also issued under sec. 301, Pub. L.96-295, 94 Stat. 789 (42 U.S.C. 5841 note). Section 73.57 is issued under sec. 606, Pub. L.99-399, 100 Stat. 876 (42 U.S.C. 2169).

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

§§73.21, 73.37(g), and 73.55 are issued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C. 2201 (b)); §§73.20, 73.24, 73.25,73.26, 73,27, 73.37, 73.40, 73.45, 73.46, 73.50, 73.55, and 73.67 are issued under sec. 1611, 68 Stat. 949, as amended (42 U.S.C.

2201 (i)); and §§73.20 (c)(l), 73.24(b)(l),

73.26(b)(3), {h)(6) and {k)(4), 73.27 (a) and (b), 73.37{f), 73.40 {b) and (d), 73.46(g)(6) and (h)(2), 73.50{g){2), {3)(iii)(B), and {h), 73.55 (h)(2) and {4)(iii)(B), 73.57, 73.70, 73.71, and 73.72 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201 (o)).

2.

In §73.46, paragraph (d) (l5) is added to read as follows:

§73.46.

Fixed site physical protection systems, subsystems, components, and procedures.

(d)

(15) The licensee may not announce or otherwise communicate to its employees or site contractors the arrival or presence of an NRC safeguards inspector unless specifically requested to do so by the NRC inspector.

5

I

3. The authority citation for Part 74 continues to read as follows:

AUTHORITY: Secs. 53, 57, 161, 182, 183, 68 Stat. 930, 932, 948. 953, 954, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2073, 2077, 2201, 2232, 2233, 2282); secs. 201, as amended 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 u.s.c. 5841, 5842, 5846).

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

§§74.17, 74.31, 74.33, 74.51, 74.53, 74.55, 74.57, 74.59, 74.81, and 74.82 are issued under secs. 161b and 16li, 68 Stat. 948, 949, as amended (42 U.S.C.

2201 (b) and 2201 (i)); and §§74.11, 74.13, 74.15, and 74.17 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201 (o)).

4. In §74.81, paragraph (d) is added to read as follows:

§74.81 Inspections.

(d)

At a fuel cycle facility authorized to use or possess a formula quantity or more of strategic special nuclear material, the licensee may not announce or otherwise communicate to its employees or site contractors the arrival or presence of an NRC safeguards inspector unless specifically requested to do so by the inspector.

~

Dated at Rockville, MD this 1,.,,-1 r

6 day of ~

992.