[Federal Register Volume 84, Number 163 (Thursday, August 22, 2019)]
[Rules and Regulations]
[Pages 43667-43668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18067]



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 Rules and Regulations
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  Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / 
Rules and Regulations  

[[Page 43667]]



NUCLEAR REGULATORY COMMISSION

10 CFR Parts 26, 37, 50, 70, and 73

[NRC-2016-0145]
RIN 3150-AJ79


Access Authorization and Fitness-for-Duty Determinations

AGENCY: Nuclear Regulatory Commission.

ACTION: Discontinuation of rulemaking activity.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is discontinuing 
the rulemaking activity, ``Access Authorization and Fitness-for-Duty 
Determinations.'' The purposes of this document are to inform members 
of the public of the discontinuation of the rulemaking activity and to 
provide a brief explanation for this decision. The rulemaking activity 
will no longer be reported in the NRC's portion of the Unified Agenda 
of Regulatory and Deregulatory Actions (the Unified Agenda).

DATES: Effective August 22, 2019, the rulemaking activity discussed in 
this document is discontinued.

ADDRESSES: Please refer to Docket ID NRC-2016-0145 when contacting the 
NRC about the availability of information regarding this document. You 
may obtain publicly-available information related to this document 
using any of the following methods:
     Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2016-0145. Address 
questions about NRC dockets to Carol Gallagher; telephone: 301-415-
3463; email: [email protected]. For technical questions, contact 
the individual listed in the FOR FURTHER INFORMATION CONTACT section of 
this document.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly-available documents online in the 
ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``Begin Web-based ADAMS 
Search.'' For problems with ADAMS, please contact the NRC's Public 
Document Room (PDR) reference staff at 1-800-397-4209, at 301-415-4737, 
or by email to [email protected]. The ADAMS accession number for 
each document referenced in this document (if that document is 
available in ADAMS) is provided the first time that a document is 
referenced.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: Ilka Berrios, Office of Nuclear 
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001; telephone: 301-415-2404; email: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On November 15, 2015, the staff submitted SECY-15-0149, ``Role of 
Third-Party Arbitrators in Licensee Access Authorization and Fitness-
for-Duty Determinations at Nuclear Power Plants'' (ADAMS Accession No. 
ML16063A268). In this paper, the staff provided options to address and 
clarify the proper role of third parties in licensee access 
authorization and fitness-for-duty determinations. These options 
included the following: (1) Rulemaking to clarify that only licensees 
can make final access authorization or fitness-for-duty decisions; (2) 
development of a Commission policy statement that would clarify that 
only licensees can make final access authorization or fitness-for-duty 
decisions; or (3) maintaining the status quo. The staff recommended 
that the Commission authorize an expedited rulemaking.
    In the staff requirements memorandum (SRM) for SECY-15-0149, 
``Staff Requirements--SECY-15-0149--Role of Third-Party Arbitrators in 
Licensee Access Authorization and Fitness-for-Duty Determinations at 
Nuclear Power Plants,'' dated June 6, 2016 (ADAMS Accession No. 
ML16158A286), the Commission directed the staff to proceed with the 
normal rulemaking process, including the development of a regulatory 
basis. In addition to the staff's normal outreach efforts, the 
Commission directed the staff to make specific outreach to potentially 
affected labor organizations regarding the proposed content and 
timeframe for the proposed rule. The Commission further directed the 
staff to include in the proposed rule a robust appeal process for 
workers whose access authorization is denied or revoked and to address 
in the proposed rule third-party review of fitness-for-duty 
determinations.

II. Process for Discontinuing Rulemaking Activities

    When the staff identifies a rulemaking activity that can be 
discontinued, the staff submits to the Commission a request for 
approval to discontinue the rulemaking. The Commission provides its 
decision in a SRM. If the Commission approves discontinuing the 
rulemaking activity, the staff informs the public of the Commission's 
decision through the publication of a Federal Register notice.
    A rulemaking activity may be discontinued at any stage in the 
rulemaking process. For a rulemaking activity that the public has 
commented on, the NRC will consider those comments before discontinuing 
the rulemaking activity; however, the NRC will not provide individual 
comment responses. For rulemaking activities that have generated 
significant public interest, the NRC conducts a public meeting or other 
form of public engagement to communicate its intent before 
discontinuing the rulemaking.
    After Commission approval to discontinue a rulemaking activity, the 
staff updates the next edition of the Unified Agenda to indicate that 
the rulemaking is discontinued. The rulemaking activity will appear in 
the completed section of that edition of the Unified Agenda but will 
not appear in future editions.

III. Access Authorization and Fitness for Duty Determinations

    Consistent with Commission direction provided in SRM-SECY-15-0149, 
the staff initiated a rulemaking to determine whether a third party's 
reversal of a licensee reviewing official's access authorization 
determination or fitness-for-duty determination would adversely

[[Page 43668]]

impact public health and safety or the common defense and security.
    The NRC held two public meetings to discuss this rulemaking 
activity. During these meetings, the NRC obtained input from interested 
stakeholders, including union and industry representatives, concerning 
the use of third-party arbitration within the commercial nuclear power 
industry. The NRC posted summaries of these public meetings in ADAMS at 
Accession Nos. ML16336A034 and ML17067A171. The NRC also held a closed 
meeting with the International Brotherhood of Electrical Workers on 
December 12, 2016, to discuss several specific cases referenced in 
SECY-15-0149 and other cases that were relevant to this rulemaking 
activity. After the closed meeting, the International Brotherhood of 
Electrical Workers voluntarily provided the NRC with specific data on 
arbitration cases involving certain International Brotherhood of 
Electrical Workers members and the outcome of these cases. The NRC 
posted a summary of the closed meeting in ADAMS at Accession No. 
ML16355A092.
    The data from the International Brotherhood of Electrical Workers 
showed that, over a span of 32 years, 371 individuals had their access 
authorizations terminated and were therefore removed from employment 
with licensees. Of those 371 individuals, 46 elected to arbitrate their 
termination, and 14 of those individuals ultimately returned to work. 
To date, none of these reinstatements have resulted in an adverse 
impact on public health and safety or the common defense and security. 
The data provided by the International Brotherhood of Electrical 
Workers was limited only to information provided by local union 
organizations and does not necessarily offer a complete list of all the 
International Brotherhood of Electrical Workers arbitration cases, 
arbitrations involving other unions, or arbitrations brought by 
individuals independent of any union involvement.
    In February and March 2017, Exelon Generation gave the NRC 
information on four arbitration cases that had reversed access 
authorization decisions made by Exelon reviewing officials. The NRC is 
not aware of any safety or security issues associated with the 
reinstatement of unescorted access for the individuals involved in 
these cases. One of these cases, however, did result in the NRC issuing 
a noncited violation to Exelon. In this specific case, pursuant to an 
arbitrator's ruling, the licensee removed disqualifying information 
from an industry shared database. The disqualifying information was 
related to an individual to whom the licensee had previously denied 
unescorted access. Removal of this disqualifying information 
constituted a violation of the NRC's regulations, which require the 
licensee to ensure that any disqualifying information about an 
individual who applied for unescorted access authorization be retained 
in the shared database. This individual did not return to work, and 
there is no additional information regarding the performance of this 
individual.
    Although allowing a third party, for example, an arbitrator, to 
overturn a licensee's access authorization and fitness-for-duty 
determination poses a potential risk, the staff does not consider this 
risk to present a significant safety or security threat. Licensees have 
maintained and implemented defense-in-depth security programs designed 
to ensure, in part, that individuals who maintain unescorted access to 
NRC-licensed commercial power reactors and Category I fuel cycle 
facilities are trustworthy and reliable and fit for duty. This is 
accomplished through the implementation of their insider mitigation, 
access authorization, fitness-for-duty, cyber protection, and physical 
protection programs. Additionally, the NRC will continue to maintain 
awareness of access authorization issues and take necessary actions 
should the need arise.
    During the development of the regulatory basis, the staff 
considered the feedback received from external stakeholders, including 
the information from the International Brotherhood of Electrical 
Workers and Exelon. The staff used this external feedback and other 
information obtained during development of the draft regulatory basis 
to evaluate whether the issue of third-party arbitrators overturning 
licensee access authorization and fitness-for-duty decisions posed a 
security vulnerability that needed to be addressed through rulemaking. 
After considering this new information, the staff determined that 
third-party reversals of licensee access authorization and fitness-for-
duty decisions do not present a significant safety or security concern 
that warranted engaging in rulemaking.
    As part of the rulemaking process, the staff performed a 
preliminary cost analysis, which concluded that the rulemaking option 
would not be justified, based on a mean net cost of $ 4.5 million. 
Further, the staff identified no significant qualitative or 
quantitative benefits that would offset the cost to conduct the 
rulemaking.
    Consistent with NRC procedures for discontinuing a rulemaking and 
because the staff's recommended approach was different from the 
recommended approach in SECY-15-0149, the staff conducted a public 
meeting on November 1, 2018. During the public meeting, the staff 
presented the status of this rulemaking and indicated that it intended 
to recommend to the Commission the discontinuation of this rulemaking 
effort for the reasons stated in this document. The staff did not 
receive any negative feedback on this proposed recommendation.
    In consideration of Commission direction in SRM-SECY-15-0149 to 
include a robust appeals process in the proposed rule, the staff 
analyzed whether standalone activities, such as issuing guidance on 
appeals processes, would be necessary if the NRC determined that 
rulemaking was not needed to address third-party reviews. Based on 
stakeholder input, the NRC determined its regulations provide adequate 
appeals processes, and the NRC does not plan to issue NRC guidance.

IV. Conclusion

    The NRC is no longer pursuing the ``Access Authorization and 
Fitness-for-Duty Determinations'' rulemaking for the reasons discussed 
in this document. In the next edition of the Unified Agenda, the NRC 
will update the entry for the rulemaking activity and reference this 
document to indicate that the rulemaking is no longer being pursued. 
The rulemaking activity will appear in the completed actions section of 
that edition of the Unified Agenda but will not appear in future 
editions. If the NRC decides to pursue a similar or related rulemaking 
activity in the future, it will inform the public through a new 
rulemaking entry in the Unified Agenda.

    Dated at Rockville, Maryland, this 16th day of August 2019.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2019-18067 Filed 8-21-19; 8:45 am]
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