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respects. (b) Each applicant or licensee shall notify the Commission of information. : identified by the applicant or licensee as , , having for the regulated activity a . . significant implication for public health ... and safety or common defense and security. An applicant or licensee ... violates this paragraph only if the applicant or licensee fails to notify the Commission of information that the : applicant or licensee has identified as to having a significant implication for public health and safety or common ... defense and security. Notification shall * be provided to the Administrator of the appropriate Regional Office within two working days of identifying the : ... information. This requirement is not . ; : applicable to information which is `... already required to be provided to the ...: Commission by other reporting or updating requirements.

PART40–Domestic Licensing of source MATERIAL

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... complete and accurate in all material

revised to read as follows: - *

* 3. The authority citation for Part 40 is

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601, sec. 10.92 Stat. 2951 (42 U.S.C. 5851).

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... center heading “General Provisions" to . .

read as follows: -

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PRODUCTION AND

: Authority: Secs. 103,104,161,182, 183,186.

"amended, sec. 234, 83 Stat. 1244, as amended

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UTILIZATION Facilities . . . . . . . . o.

5. The authority citation for Part 50 iss

189, 68 Stat. 936,937, 948,953,954,955,956, as:

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6. Immediately following $ 50.8, a new $50.9 is added under the undesignated

center heading “General Provisions" to

read as follows: -

- $50.9 Completeness and accuracy of

Information. (a) Information provided to the Commission by an applicant for a license or by a licensee or information required by statute or by the Commission's regulations, orders, or

license condition to be maintained by

the applicant or the licensee shall be complete and accurate in all material respects. (b) Each applicant or licensee shall notify the Commission of information identified by the applicant or licensee as .

having for the regulated activity a

significant implication for public health and safety or common defense and

security. An applicant or licensee

violates this paragraph only if the applicant or licensee fails to notify the Commission of information that the applicant or licensee has identified as having a significant implication for public health and safety or common defense and security. Notification shall

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the authority citation for Part 55 is rised to read as follows:

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... as amended. 202.88 Stat. 1242, as amended.

1244 (42 usic. 5841.5842). is Section 5540 also issued undersecs.188. 187.68 Stat. 955 (42 U.S.C. 2236,2237). * For the purposes of sec. 223, 68Stat. 958, as amended [42 U.S.C. 2273), 45553 and 55.31 (a) through (d) are issued under sec.161.68 Stat. 949, as amended (42 U.S.C. 2201.[I]); and ##556b,559 and 55.41 are issued under sec. 1610, 68Stat. 950, as amended (42 U.S.C. 2201.[o]). 8. Immediately following $55.5a, a

new $55.6b is added under the undesignated center heading "General Provisions" to read as follows:

$55,6b Completeness and accuracy of information.

(a) Information provided to the Commission by an applicant for a license or by a licensee or information required by statute or by the Commission's regulations, orders, or license conditions to be maintained by the applicantor the licensee shall be complete and accurate in all material

ts. § Each applicant or licensee shall

notify the Commission of information identified by the applicant or licensee as having for the regulated activity a significant implication for public health and safety or common defense and security. An applicant or licensee violates this paragraph only if the applicant or licensee fails to notify the Commission of information that the applicant or licensee has identified as having a significant implication for public health and safety or common defense and security. Notification shall be provided to the Administrator of the appropriate Regional Office within two working days of identifying the information. This requirement is not .. to information which is

ady required to be provided to the Commission by other reporting or updating requirements.

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10. Immediately following $608, a new $608a is added to Subpart A to

- read as follows:

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the applicant or the licensee shall be complete and accurate in all material respects. (b) Each applicant or licensee shall notify the Commission of information identified by the applicant or licensee as having for the regulated activity a significant implication for public health and safety or common defense and security. An applicant or licensee violates this paragraph only if the applicant or licensee fails to notify the Commission of information that the applicant or licensee has identified as having a significant implication for public health and safety or common defense and security. Notification shall be provided to the Administrator of the appropriate Regional Office within two working days of identifying the information. This requirement is not .. to information which is already required to be provided to the Commission by other reporting or updating requirements.

PART 61-LICENSING REQUIREMENTs. Fort L.And DISPOSAL OF RADIOACTIVE WASTE

11. The authority citation for Part 61 is revised to read as follows:

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12. Immediately following $618, a new $61.8a is added to Subpart Ato

read as follows:

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Commission by an applicant for a

license or by a licensee or information

required by statute or by the Commission's regulations, orders, or license conditions to be maintained by the applicant or the licensee shall be complete and accurate in all material respects. (b) Each applicant or licensee shall notify the Commission of information identified by the applicant or licensee as having for the regulated activity a significant implication for public health and safety or common defense and security. An applicant or licensee violates this paragraph only if the applicant or licensee fails to notify the Commission of information that the applicant or licensee has identified as having a significant implication for public health and safety or common defense and security. Notification shall be provided to the Administrator of the appropriate Regional Office within two working days of identifying the information. This requirement is not applicable to information which is already required to be provided to the Commission by other reporting or updating requirements.

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$70.9 Completeness and accuracy of information. -* . (a) Information provided to the Commission by an applicant for a license or by a licensee or information required by statute or by the Commission's regulations, orders, or license conditions to be maintained by the applicant or the licensee shall be complete and accurate in all material respects. (b) Each applicant or licensee shall notify the Commission of information identified by the applicant or li as having for the regulated activity a significant implication for public health and safety or common defense and security. An applicant or licensee violates this paragraph only if the applicant or licensee fails to notify the Commission of information that the pplicant or licensee has identified as .aving a significant implication for public health and safety or common defense and security. Notification shall be provided to the Administrator of the appropriate Regional Office within two working days of identifying the information. This requirement is not applicable to information which is already required to be provided to the Commission by other reporting or updating requirements.

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Federal Register / Vol. 52, No. 47 / Wednesday, March 11

$71.6a Completeness and accuracy of information. (a) Information provided to the Commission by an applicant for a license or by a licensee or information required by statute or by the Commission's regulations, orders, or license conditions to be maintained the applicant or the licensee shall be complete and accurate in all material respects. (b) Each applicant or licensee shall notify the Commission of information identified by the applicant or licensee as having for the regulated activity a significant implication for public health and safety or common defense and security. An applicant or licensee violates this paragraph only if the applicant or licensee fails to notify the Commission of information that the applicant or licensee has identified as having a significant implication for public health and safety or common defense and security. Notification shall be provided to the Administrator of the appropriate Regional Office within two working days of identifying the information. This requirement is not applicable to information which is already required to be provided to the Commission by other reporting or updating requirements.

PART 72-LICENSING

REQUIREMENTS FOR THE STORAGE

OF SPENT FUEL IN AN INDEPENDENT SPENT FUEL STORAGE INSTALLATION (ISFSI)

17. The authority citation for Part 72 is revised to read as follows:

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, 1937 / Proposed Rules

18. Immediately following $ 72.9, a new $ 72.9 is added to Subpart A to read as follows:

$72.9a Completeness and accuracy of information. (a) Information provided to the C ission by an applicant for a license or by a licensee or information required by statute or by the Commission's regulations, orders, or license conditions to be maintained by the applicant or the licensee shall be complete and accurate in all material respects. (b) Each applicant or licensee shall notify the Commission of information identified by the applicant or licensee as having for the regulated activity a significant implication for public health and safety or common defense and security. An applicant or licensee violates this paragraph only if the applicant or licensee fails to notify the Commission of information that the applicant or licensee has identified as having a significant implication for public health and safety or common defense and security. Notification shall be provided to the Administrator of the appropriate Regional Office within two working days of identifying the information. This requirement is not applicable to information which is already required to be provided to the Commission by other reporting or updating requirements.

PART 110–EXPORTAND IMPORT OF NucLEAR Equipment AND

MATERIAL AUTHORITY

19. The authority citation for Part 110 is revised to read as follows:

Authority:Secs. 51,53,54, 57.63.64, 65.81, 82, 103,104,109,111, 126, 127, 128, 129, 161, 181, 182, 183,187, 189, 68 Stat. 929, 930, 931, 932, 933,936, 937, 948, 953, 954,955, 956, as amended (42 U.S.C. 2071, 2073,2074, 2077. 2092-2095, 2111, 2112, 2133, 2134,2139, 2139a, 2141. 2154–21.58, 2201, 2231-2233,2237.2239); sec. 20188 Stat. 1242, as amended (42 U.S.C.

5841). Section 110.1(b)(2) also issued under Pub. L. 96–533, 94 Stat. 3138 (42 U.S.C. 2403). Section 110.11 also issued under sec. 122.68 Stat. 939 (42 U.S.C. 2152) and secs. 54c and 57d., 88 Stat. 473,475 (42 U.S.C. 2074). Section 110.21 also issued under sec. 309(a). Pub.L. 99–440. Section 110.50(b)(3) also issued under sec. 123, 92 Stat. 142 (42 U.S.C. 2153). Section 110.51 also issued under sec. 184, 68 Stat. 954. as amended (42 U.S.C. 2234). Section 110.52 also issued under sec. 186, 68 Stat. 955 (42 U.S.C. 2236). Sections 110.80 through 110.113 also issued under 5 U.S.C. 552.554. Sections 110.30 through 110.35 also issued under 5 U.S.C. 553. For the purposes of sec. 223, 68Stat. 958, as amended (42 U.S.C. 2273); $5 110.20 through 110–29, 110.50, and 110.120 through 110.129

Federal Register / Vol.

52. No. 47 / Wednesday, March 11,

1987 / Proposed Rules 7441

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(a) Information provided to the Commission by an applicant for a license or by a licensee or information required by statute or by the Commission's regulations, orders, or license conditions to be maintained by the applicant or the licensee shall be complete and accurate in all material respects.

(b). Each applicant or licensee shall notify the Commission of information identified by the applicant or licensee as having for the regulated activity a significant implication for public health and safety or common defense and security. An applicant or licensee violates this paragraph only if the applicant or licensee fails to notify the Commission of information that the applicant or licensee has identified as having a significant implication for public health and safety or common defense and security. Notification shall be provided to the administrator of the appropriate Regional Office within two working days of identifying the information. This requirement is not applicable to information which is already required to be provided to the Commission by other reporting or updating requirements.

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11150.16through 150.19 and 150.20(b) are i-ued under-et-1610-68 Stat-950. -amended [42 U.S.C. 22O1(o)). 22. The introductory paragraph of 4150.20(b) is revised to read as follows:

1150.20 Recognition of agreement-tatoc-n

(b) Notwithstanding any provision to the contrary in any specific license issued by an Agreement State to a person engaging in activities in a nonAgreement State or in offshore waters under the general licenses provided in this section, the general licenses provided in this section are subject to the provisions of $430.7(a) through (e). 30.9, 30.14(d) and #30-34.3041, and 30.51 to 30.63, inclusive, of Part 30 of this chapter: $40,7(a) throughte). 40.9, and 4; 40.41.40.51.4061.40.63, inclusive, 40.71 and 40.81 of Part 40 of this chapter: and 470.7(a) through [e). 709, and 4470.32.70.42.70.51 to 70.56, inclusive. 70.50 to 70.62- inclusive. and 70.71 of Part 70 of this chapter; and to the provisions of Parts 19.20, and 71 and Subpart B of Part 34 of this chapter. In addition, any person engaging in activities in nonAgreement States or in offshore waters under the general licenses provided in this section: - - - - Separate views of Commissioner Asselstine follow. Dated at Washington, DC. this 6th day of March. 1987. For the Nuclear Regulatory Commission. John C. Hoyle, Acting Secretary of the Commission.

"Separate Views of Commissioner

Asselstine

The Commission's proposal to substitute this regulation for its present standards governing material false statements suffers from two major flaws. First, it requires less than the full disclosure required by the Commission in the VEPCO case. Second, it fails to provide clear guidance to the licensees on what their responsibilities are in reporting information to the NRC.

The Commission has for ten years used the standards set out in the VEPCO case when taking enforcement action formisstatements or failures to report information. Licensees and applicants are required to assure that all submissions of material information are complete and accurate, whether made orally or in writing. In addition. licensees and applicants have an affirmative duty to report all material information to the Commission, even in the absence of a specific reporting requirement in the regulations. Material

information is that which has the capability of influencing a reasonable agency expert in the conduct of his duties. --That standard is rather broad, but the Commission has justified such a full disclosure requirement on the ground that it is essential to ensure that the Commission could fulfill its duty to protect the public health and safety. CLI-75-22-4 NRC430.488. a full disclosure requirement is essential given the audit nature of the NRC's regulatory activities. Because the agency actually observes or inspects only a small portion of a licensee's activities, we must depend heavily on the licensee to identify and report to the NRC any problems which may affect the safety of the public. The full disclosure requirement established in VEPCO provides assurance that licensees will bring to the agency's attention all material safety information. Only with all relevant information can the NRC make a thorough appraisal before reaching a regulatory decision. While specific reporting requirements in regulations are important to provide guidance to the licensees, they are not sufficient to ensure full disclosure:

. . .no-et-of-pecific regulations. however carefully drawn, can be expected to cover all possible circumstance-Information may come from unexpected sources or take an unexpected form, but if it is material to the licensing decision and therefore to the public health and safety it must be passed on to the Commission if we are to perform our task-4 NRC:-89.

Thus, the Commission properly felt that a full disclosure provision which is broad enough to coverall circumstances is necessary. The Commission said that a healthy dose of commonsense and a look at the contextin which the issue arose would be sufficient to resolve most problems which might arise because of the breadth of the requirement. That has, in fact, been the case in the past ten years since the VEPCO decision was issued. The Commission has used thematerial false statement violation in a limited number of cases and only after careful review. The Commission's judicious use of these citations has effectively corrected deficient performance on the part of a few licensees and has served as a reminder to the rest of the industry of the need for full disclosure of material information.

The Commission is no longer willing to rely on common sense, however. Largely because of concerns raised about the difficulty of controlling the oral statements of all licensee employees and about the pejorative

7442 Federal Register / Vol.

52. No. 47 / Wednesday, March 11.

1987 | Proposed Rules

connotations of the label "material false statement" the Commission has decided to engage in rulemaking to articulate a modified policy on disclosure of information. Unfortunately the proposed rule fails to accomplish one of the primary purposes of rulemaking-to tablish clear guid to the regul entities, rather, the rule discards wellthought-out and well-established principles and substitute: something # even the *::::::: have ifficulty unders ing. subsectionb. of the propósed rule is the Commission's substitute for the full disclosure requirement. Itfalls far short of the VEpcostandard. First. The rule limits the ability of the Commission to take enforcement action if a licensee fails to report significant information. The rule only requires disclosure of information, which is not otherwise required by regulation order, statute, or license condition. in those cases where the licensee has identified it as "having for the regulated activity a significant implication" for the public health and safety. This standard in effect allows the licensee to determine what information is relevant to the conduct of agency business. It is unusual, to say the least. for an agency to leave up to the regulated entity the determination of what information is material for purposes of deciding whether to take enforcement action. The Commission does not explain what benefit this additional element provides. In fact, it will add to the difficulty in taking enforcement action because it requires proof of a new element, the fact of identification by the licensee." Moreover, the rule includes no provision for enforcement action if the licensee should have identified information as being significant and did not. Alicensee only violates subsection b. if it actually identifies information and fails to report it. If the licensee fails to identify significant information, the Commission can take no enforcement action based on the rule. The commission states that it intends to fall back on its general authority to revoke, suspend or modify licenses in those cases where there is a question about the reasonableness of the licensee's failure to identify information as being significant: ... an order might be appropriate where the action of the licensee in not recognizing the significance of the information and failing

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to report it together with the relevant facts.
raises serious questions about either its
competence, i.e., its ability to evaluate
information, or its trustworthiness, i.e. its
failure to consider potentially significant
information for evaluation.
Thus, the rule provides that a licensee
can be penalized under the rule only for
failure to report information it has
identified as significant. Yet according
to the Commission the licensee can be
penalized under the Commission's
general regulatory authority for failure
to identify information as being
significant. However, the Commission
fails to explain what standards will be
used in determining whether to take
enforcement action for a failure to
identify. There certainly are no
standards in the rule. This seems to be a
particularly clumsy way of regulating
the reporting of significant information.
Amore logical approach would be tooet
out a clear standard governing what
information the Commission thinks
should be reported and to clearly
explain when licensees will be subject
to enforcement action for failure to
report such information. It would be
easier for the licensees to understand
and would not require them to go
beyond the rule to understand when
they might be penalized for failure to
identify information.
A third problem with the proposed
rule is that the Commission has raised
the threshhold for what information has
to be reported. Under VEPCO the full
disclosure standard requires that a
licensee report any information which
has the capability to influence a
reasonable agency expert-
commission has substituted for that
dard a requi t thatli
report information "having for the
regulated activity significant
implications for the public health and
safety and the common defense and
security." What that phrase means is
anybody's guess. The Commission
makes no attempt to explain what it
means, and it certainly has no accepted
legal definition as does the term
oaterial" which is used in the
Commission's present standard. Qnce
again the Commission fails to add
clarity. Rather, this phrase will only
provide fertile ground for litigation.
The only thing that is clear about this
phrase is that it sets a higher threshhold
for reporting than that required under
the presentfull disclosure requirement
obviously by inserting the term
“significant" into the rule the
Commission meant to require something
less than that all material information
be reported. The Commission fails to
explain why such a change is necessary.
what benefit will accrue from the

change, or how th: change will help the Commission to ensure that it is aware of mirelevant information when it carries out its duty to protect the public health and safety. The commission's rule thus faile" only to require full disclosuo of material safety information, but it fails to provide clear guidance. The law on material false statements was well settled and worked effectively for ten years. The Commission has substituted for that long-settled law a rule which makes requirements less clear. which establishes new standards that make little sense, which will only make it more difficult to take enforcement action, and which will surely lead to muchlitigation. The benefits of this rule are on the other hand, difficult to discern. The rule certainly will not encourage full disclosure, and it does nothing to clarify Commission requirements. In its effort to ensure that reporting violations will no longer be isbelled material false statements, the Commission has diminished the NRC's ability to obtain the information it needs to discharge its safety mission and to deal effectwely with licensees who fail to provide the agency with needed information. [FRDoc. 87–6167 Filed 3–10–87; 8:45 an! siung code fooo-o-o:

FEDERALDEPOSIT INSURANCE
CORPORATION

12 CFR Part 332

Powers inconsistent with Purposes of
Federal Depositinsurance Law

Agency:Federal Deposit Insurance
Corporation (FDIC).
Acrion: Extension of deadline for
consideration, adoption, and publication
of final rule.

*The Commission seems to recognize that there may be some difficulty in actually establishing that a licensee has identified information as significant because the Commission sets out in the statement of considerations a few examples of actions which may be indicative of identification.

summany. This notice serves to extend the period of time which the FDIC may use under its internal policy statement for the consideration, adoption, and publication of the FDIC's final rule on participation by insured banks in real estate development and insurance underwriting activities. pare: The deadline for final agency action on the proposed rule is extended to September 15, 1987. Fon Furnier wronManon contract; pamela E.F. LeCren, Senior Attorney, Legal Division. (202) 898–3743, or Robert E. Feldman. Senior Attorney. Legal Division. (202) 898–3743, Federal Deposit Insurance corporation. 55017th Street nw. Washington, DC.20429.

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