[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
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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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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