ML20011D100
| ML20011D100 | |
| Person / Time | |
|---|---|
| Issue date: | 10/18/1989 |
| From: | Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| FRN-55FR27645, TASK-RINV, TASK-SE AD60-1-15, SECY-89-321, NUDOCS 8910230047 | |
| Download: ML20011D100 (27) | |
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October 18, 1989 RULEMAKING ISSUESECY-89-321 (Notation Vote) 3:
The Commissioners FRON:
llilliam C. Parler General Cour,sel
SUBJECT:
REVISIONS TO PROCEDURES TO ISSUE ORDERS - 10 C.F.R. PART 2 PURPOSE:
To obtain approval to initiate a rulemaking to revise the Comission's procedures in 10 C.F.R. Part 2 Subpart B, for issuing orders to include persons not licensed by the Commission but who are otherwise subject to the Commission's jurisdiction. The proposed amendments would more fully reflect the Comission s existing statutory authority to issue orders than is presently the case. The proposed amendments also would clarify the types of Comission* orders to which hearing rights attach.
BACKGROUND:
The proposed rulemaking recommended for Comission approval proposes procedural changes to 10 C.F.R. Part 2, Subpart B, regarding the issuance of orders and orders to show cause
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to persons (corporate and individuals) not licensed by the Comission but who engage in activities subject to the Comission's jurisdiction. These changes will make the Commission's Rules of Practice more consistent with our existing statutory authority.
The proposed rules are procedural in nature. They do not establish the substantive standards or conditions under which the NRC would issue an order to a licensed or unlicensed person. The staff has been directed to submit to the Commission, in a separate rulemaking, a substantive addition to its regulations in order to put unlicensed persons on notice that they may be held accountable for willful misconduct which undermines, or calls into CONTACT:
Jack R. Goldberg x21681 Mary E. Wagner x21683 p r.;w m u d
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question, adequate protection of the public health and safety.
The intended scope of the substantive rule will be set forth in that rulemaking.
The proposed change to i 2.202 establishes the procedural l
mechanism to issue orders to unlicensed persons. The procedural mechanism for issuing orders to show cause to licensees and other persons would be set forth in a i
separate section (revised i 2.204) in order to make it clear that the right to a hearing does not attach at the time of issuance of a show cause order which requires only that information be provided in order to determine whether an order to modify, suspend or revoke a license or for other appropriate action should be issued.
Further, the ED0's authority to issue such orders would not be limited to emergencies, as in the current regulations.
To conform to the changes to il 2.202 and 2.204, confomin are also proposed to li 2.1 (scope) and 2.700 (g changes scope of subpart).
Portions of this proposed rulemaking to revise the procedures to issue orders to include persons not licensed diso are responsive in part to a memorandum dated June 29, 1989 from Samuel J. Chilk to Victor Stello, Jr.,
"SECY-89-151 - Identifying and Infoming Others of Wrongdoers and Initiating Rulemaking to Permit the Issuance of Orders to Non-Licensees."
As mentioned above, the
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staff intends to submit, in accordance with SECY-89-151, Option.1, and Secretary Chilk's June 29, 1989 memorandum, a proposed rulemaking containing a substantive addition to the regulations in order to put unlicensed individuals on notice that they may be held accountable for willful misconduct which causes a licensee to violate an NRC requirement or which places in question reasonable assurance of adequate protection of the public health and safety.
However, the changes to 10 C.F.R. Part 2 proposed here have a utility independent of the staff's need to track wrongdoers, as discussed below.
Horeover, the establishment of the procedural mechanism to issue orders to indiviouals also should resolve a concern raised some time ago in response to the Commission's proposed adoption of regulations on Completeness and Accuracy of information.
In those comments, the United States Department of Justice expressed concern that in its civil enforcement program the Commission does not impose L
civil penalties against individuals, but only against licensees, resulting in a particular problem in a marginal criminal case wnere a civil penalty against the individual p
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could be the preferred resolution. See letter dated
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Deceuber 18, 1986 from Victoria Toensing, U.S. Department d
of Justice, to William C. Parler, U.S. Nuclear Regulatory j
Comission.
DISCUSSION:
The current provisions in the Comission's Rules of Practice for issuing show cause orders only address licensees. However, the Commission's statutory authority to issue. orders, which is found in Section 161 of the Atomic Energy Act of 1954, as amended, is not so limited.
In fact, the Comission's Atomic Energy Act authority to issue orders is extremely broad, extending to any person (defined in Section 11s to include, for example, any individual, corporation, federal, state and local agency) who engages in conduct within the Comission's subject-matter jurisdiction. The few court cases which i
deal with the scope of the general authority Congress has granted the Commission usually do so in a general ciscus-sion or in passing and conclude that Section 161 confers uniquely broad and flexible authority on the Comission, i
See Power Reactor Dev. Co. v. International Union of
-l TTic. Radio and Mach. Workers. AFL-CIO, 367 U.S. 396 (1961); Connecticut Light ano Power Co. v. Nuclear Regulatory Comm'n, 673 F.2d 525, 527, n. 3 (D.C. Cir.
1982); New Hampshire _v. Atomic Energy Com'n, 406 F.2d 170,
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173-74 (1st Cir. 1969); Siegel v. Atomic Energy Comm'n, 400 F.2d 779, 783 (D.C. Cir.1968); but cf. Reynolos v.
United States, 286 F.2d 433 (9th Cir. 1960) (interpreting i
Section 161i in detail and holding in the context of the AEC's bomb testing activities, that Section 161i(3) authorized the AEC to take action to govern the activities L
of private licensees and not the activitics of' the l
Comission itself; the court's use of the word " licensee" is dictum with regard to the term in the context of this paper).
l Section 1611 provides broad authority to issue orders as the Comission deems necessary to govern any activity authorized pursuant to the Atomic Energy Act in order to protect the public health and safety.
Section 161b similarly authorizes the Commission to issue orders to establish such standards and instructions to govern the possession and use of special nuclear material, source material, ano byproduct material, as may be necessary or desirable to provide for the comon defense and security and protect the public health and safety. As relevant l
here, Section 1610 authorizes the Comission to order l
reports as may be necessary to effectuate the purposes of the Act, 1
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Given this broad authority, it is appropriate to amend 10 C.F.R. I 2.202 to have the procedural mechanism.in ~;1 ace to issue orders, as necessary, to unlicensed persons, aoth Y
corporate and individual, when such persons have demon-1-
strated that future control over their activities subject 4
to the NRC's jurisdiction is necessary or desirable to protect public health and safety or to minimize danger to o
life or property or to protect the common defense and t
security. This amendment would revise i 2.202 to establish I
that mechanism both as to.a licensee, as the current i 2.202 provides, and to any person subject to the jurisdiction of the Comission. Such a person includes, but is not limited to, a person who held a license or who was otherwise engaged in licensed activities at the time of i
the conduct in question, but who no longer holds a license or is so engaged, and to vendors, contractors, and certificate holders.
In uddition, the procedural mechanism for issuing orders to show cause to licensees and other persons would be set forth in a separate section (revised i 2.204) in order to make it clear that the right to a hearing does not attach at the time of issuance of a show cause order, Orders, including orders to show cause, currently are issued under Section 161 of. the At.omic Energy Act of 1954, as amended, which are implemented by li 2.202 (order to show cause) and 2.204 (order for modification license).
In addition, civil penalty orders are issued under Section 234, implemented by i 2.205 (civil penalties).
NRC practice commonly has been to issue a single order, an order to show cause, which requires that certain information be provided to oemonstrate why either a proposed or immeointely effective action modifying, suspending, or revoking a license or a proposed order for such other action as may be appropriate, should not be taken. The order affords a hearing with regard to these actions. While Section 189 of the Atomic Energy Act provides for the granting of a hearing in connection with proceedings to modify, suspend, or revoke a license and certain other enumerated actions, neither the Act nor the Administrative Procedure Act would require a hearing in connection with an order to show cause which I
requires only the submission of information, but does not by its terms modify, suspend or revoke a license.
The Atomic Energy Act does not explicitly set out the form or requirements for an order to show cause. The Atomic L
Energy Act does, however, authorize the Comission to collect information pursuant to Sections 161c and o and the Comission may issue show cause orders to implement this
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authori ty. Section 182 of the Act authorizes the Comission to request information from licensees and the J
Comissicn has implemented this authority by promulgating regulations such as 10 C.F.R. i 50.54(f). Licensees subject to Comission requests under 10 C.F.R. 9 50.54(f),
or its equivalent in other parts of the NRC's regulaticns, have no hearing rights under the Act regarding these information requests.
Separation of the Comission's order to show cause authority from the Comission's general ordering authority, contained in revised i 2.202, will clarify that hearing rights do not attach to the former. The provisions concerning orders to show cause are set forth in a revised i 2.204. Under the proposed rule changes, an order to show cause will.be issued only to require the submission of information.
If an order to show cause is issued as part of an order requiring action, hearing rights will be offered but only with respect to the provisions of the order requiring action. The order will provide that the answer, if not consenting to the required action, may explain why the order should not have been issued.
In order to avoid unnecessary duplication in the regulations, it is pr.oposed that the current language of G 2.204, " Order for modification of license," be deleted from Part 2 since procedures for modification of a license have been included in revised i 2.202.
Revised i 2.202(f) provides that if the action ordered by the Comission constitutes a backfit of a Part 50 licensee, the procedures described in 10 C.F.R. 9 50.109 must be followed, unless the action is consented to. This provision currently ypears in the last sentence of 9 2.204 Section 2.202 is also revised to provide that if the licensee or other person to whom an order is issued consents to its issuance, or the order confirms actions agreed to by the licensee or such other person, such consent or esteement constitutes a waiver by the licensee or such other person of a right to a hearing and ony l,
associated rights. Such orders will be imediately effec-tive. This is not a departure from current Commission practice, but merely conforms the Commission's regulations to such practice. See, e.g., Minnesota Mining and Manufacturing Co., FCenter 220-2E-02 C Modifying License, Ef f ective Imediately,onfinnatory Order December 21, l
1988, 53 Fed. Reg. 52534(1988).
Section 2.202(d) also provides that the licensee's or other person's agreement to 1
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an order must be in writing. The addition of this 1
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provision is intended to minimize the possibility of t
issuance of a confirmatory order which does not accurately reflect the agreement reached by the parties. Whether or not the licensee or other person consents to any order, a person adversely affected ay an order issued under i 2.202 to modify, suspend or revoke a license will be offered an opportunity for a hearing pursuant to Section 189 of the Atomic Energy Act, consistent with current practice and the authority of the Commission to define the scope of the proceeding.
See Bellotti v. NRC, 725 F.2d 1380 (D.C. Cir.
1983).
The existing 9 2.202 vests authority to issue orders in the Executive Director for Operations (E00) and various staff office directors. The existing rule limits the ED0's
^ authority to issue orders only during an energency.
Existing i 2.204 vests authority to issue orders in the Comission. The revised rules contistently vest such authority in the Commission, leaving it to the Commision's internal delegation authority to celegate such authority to others. This change will avoid the need to amend the regulation each time the title of one of the currently enumerated officials is changed, and will also remove the unnecessary limitation on the E00's authority. However, the Commission's existing de. legations should undeego a review to assure that they are clear, complete, and current.
Finally, to confom to the changes to li 2.202 and 2.204, 9 2.1 is anended to specify that the scope of Part 2 includes the issuance of orders and orders to show cause to unlicensed persons and 9 2.700 is amended to specify that Subpart G (Rules of General Applicability) a3 plies to all adjudications initiated by an order rather t1an just an order to show cause.
RECOMMENDATION:
That the Connission:
1.
Approve publication in the Federal Register of the notice of proposed rulemaking in Enclosure A-2.
Direct the staff to undertake a review of the connission's existing delegations to assure they are clear, complete, and current, and promptly revised when necessary; f
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Note:
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a.
The notice of proposed rulemaking in Enclosure A will be published in the feceral Register allowing 60 days for public comment.
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b.
The Commission may wish to consider publishing i
this notice of proposed rulemaking in conjunction with publication of the proposed rulemaking containing the substantive changes imposing requirements on unlicensed persons.
o c.
The issue of procedural changes to the regulations.to clarify the Commission's authority
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to issue' orders to persons who do not hold licenses was discussed before the House Subcommittee.on Environment, Energy and Natural Resources during its decommissioning hearings on Auguct 3, 1989.
d.
Since this proposed rule quelifies as a categorical exclusion unoer 10 C.F.R. 51.22(c),
neither an environmental impact statement nor an assessment has been prepared, e.
The Subcommittee'on iluclear Regulation of the Senate Committee on Environment and Public Works, the Subcommittee on Energy and the Environment of the House Interior and Insular Affairs Committee, the Subcor:inittee on' Energy Conservation and Power of the House Energy and Coninerce Committee, and the Subcommittee on Environment, Energy and flatural Resources of the House Committee on Government Operations will be informed of the rulemaking by letter such as Enclosure B.
f.
The Federal Rnister notice of proposed rulemaking will be distributed to affected licensees.
g.
A public announcement will be issued by the Office of Public Affairs when the proposed rulemaking is filed with the Office of the Feceral Register.
h.
Since the proposed rule is administrative in t
nature, and therefore does not result in the
" modification of or aadition to systems, structure, components, or design of a f acility
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... or the procedures or organization required to design, construct, or operate a facility, the staff believes that the backfit rule,10 C.F.R. 50.109, does not apply to the proposed rule, j
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t William C. Parler f
General Counsel
Enclosures:
A.
Draft Federal Register 140tice B.
Draft Congressional Letter Commissioners' comments or consent should be provided directly to the Office of the Secretary by COB Friday, November 3, 1989.
e Commission Staf f Of fice ccimments, if any, should be submitted to the Commissioners NLT Friday, October 27, 1989, with'an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional-time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
DISTRIBUTION:
Commissioners OGC OIG LSS GPA i
REGIONAL OFFICES EDO ACRS ACNW ASLBP ASLAP SECY f
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Enclosure A i
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NUCLEAR REGULATCM COMMISSION i
f 10 C.F.R. Part 2 Revisions to Procedures tv !ssue Orders
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AGENCY:
Nuciver Regulatory Coi.nission, t
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Proposed rule.
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SUMMARY
- The Nuclear Regulatory Counission (HRC) proposes to revise the
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Comnissions procedures for issuing orders to include persons not licensed by the Countssion bat who are otherwise subject to the Comission's jurisdiction.
1 The proposed revisions would more accurately reflect the Comission's existing
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t statutory authority to issue order.s than,is presently the case.
The revisions
_i also clartfy the types of Consission orders to which hearing rights attach.
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1 DATES: ine connent period expires on (50 days af ter publication in the j
i Federal Register). Conments received after this date will be considered if it is practical to do so, but assurar.ce of consideration cannot be given except as to conments received on or before ti.1s date.
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ADDRESSES: Send wrii.i,en connents to the Secretary of the Commission, U.S.
Nuclear Regulatory Comission, Washington, DC 20555, Attention: Decketing and Service Branch. Coments may also be delivered to the Office of the j
Secretary, U.S. Nuclear Regulatory Comission, One White Flint North,11555 f
Rockville Pike, Rockville, Maryland, between 7:30 a.m. anc 4:15 p.m. weekdays.
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Copies of any cons.ents received may be examined and copied for a fee at the IIRC Public Document Room. 2120 L Street, IN, Washington, DC between the hours of 7:45 a.m. and 4: 15 p.m. weekdays.
FOR FURTHER INFORMATION CONTACT: Mary E. Wagner, Office of the General r.cunsel, U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Ttlephone:
301-492 1583.
f SUPPLEMENTARY INFORIMTION:
I
Background
t The procedures to be followed by the Comission to initiate formal enforcement action are found in the Comission's Rules of proctice set forth in 10 C.F.R. Part 2, Subpart B.
These ac,tions include notices of violatiosi, oescribed in i 2.201, show cause orders, described in G 0.202, orders to modify licenses, described in i 2.204, and civil penalties, described in i 2.205.
Until 1983, with the exception of the civil penalty procedures in i 2.205, the language in these procedures referred solely to license.s s.
At i
that time, it was recognized that the Commission's regulations did not provide a procedural mechanista to issue a formal notice of violation to an unlicensed person (corporate or individual) who had violated Comission requiretaents.
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for example, by referring only to licensees, the procedures in i 2.201 did not address issuing a notice of violation to a person who possesseo radioactive l
material without a license in violation of Comission requirements or an unlicensed person who violated provisions of 10 C.F.R. Part 21, which r
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i implements Section 206 of the Energy Reorganization Action of 1974 Consequently, the Corm,lssion amended its regulations to permit the issuchce of l
notices of violations to unlicensed persons who violated Comission i
requirements. Ch4nges were published in the Federal Register on Septet.iber 28, l
1983 (48 FR 44170) to amend i 2.200 (Scope of subpart) ano i 2.201 (Notice of I
violation) to ado the phrase "or other person subject to the jurisdiction of the Consission."
i As stated above, the provisions for issuing show cause orders only l
address 11Censees.
However, the Col.nission's statutory 60thority to issue I
orders, which is found in Section 161 of the Atomic Energy Act of 1954, as l
ei.iendec, 42 U.S.C. I 2201, is not so limited.
In fact, the Cornission's
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Atomic Energy Act authority to issue orders is extremely broad, extending to any person (defined in Section 11s to inc,lude, e.g., any inoividual, corporation, federal, state and local agency) who engages to conduct within the Comission's subject matter jurtsdiction.
The few court cases which deal with the scope of the general authority Congress has granted the Cornission
'l usu611y do so in a general discussion or in passing and conclude that Section 161 confers uniquely broad and flexible authority on the Comission.
l See Power Reactor Dev. Co. v. International Union of Elec. Radio and Hocn.
j Workers. AFL-CIO, 367 U.S. 396 (1961): Connecticut Light and Power Co. v.
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Nuclear Regulatory Com'n, 673 F.2d $25, 527, n. 3 (D.C. Cir.1982);
i New Hampshire v. Atomic Enerqr Com'n, 406 F.2d 170,173-74 (1st Cir.1969);
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Siegel v. Atomic Energy com'n, 400 F.2d 779, 783 (D.C. Cir.1968); but ef.
f Reynolds v. United States, 286 F.2d 433 (9th Cir.1960) (interpreting Section 1611 in detail and holding, in the context of the AEC's bomb testing 1
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o ectivities, that Section 1611(3) authorized the AEC to take action to Govern
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the activities of private licensees and not the activities of the Commission itself; the court's use of the word " licensee" is dictum with regard to the l
tersinthecontextofthisnotice).
i Cases analyzing the Federal Corsnunications Comission's (FCC) enabling i
statute, which, in inany ways, is analogous to the 1954 Act, also support the 6
i principle that the Comission's authority is broad in scope. The Federal Communications Act of 1934 (the 1934 Act) broadly authorizes the FCC to "make
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suchrulesandregulations,andissuesuchorJers,notinconsistentwith[the i
1934 Act), as may be necessary in the execution of its functions", 47 U.S.C.
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i1541(1982). This provision is similar to Section 1611(3) of the Atomic Energy Act of 19E4, which authorize!s 'the Comission to " prescribe such rules, re9ulations, and orders os it may deem ne.cessary to govern ny activity
~f authorizedpursuanttothe[AtcaicEnergyActof1954)...inoroerto l
protect hesith and to minimize canger to life or property...." 42 U.S.C.
f i2201(1)(3)(1982). A number of cases have analyzed Section 1541 in detail
- f and determined that the FCC's ordering authority is necessarily broad.
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See Federal Comunications Comission v. llational Citizens Coumittee t'or Broadcasting, 436 U.S. 775 at 793 (1978); United States v. Storer Broadcasting Co.
351 U.S.192 at 203 (1955); lietional Broadcastino Co. v.
United States, 319 U.S. 190 at 196 (1943); Lincoln Telephone and Telegrar.h Co.
- v. Feder61 Communications Comission, 659 F.2d 1092 (D.C. Cir.1981); American j
Telephone and Telegraph v. Federal Communications Cumission, 487 F.2d 865 (2o Cir.1973); GTE Service Corp. v. Federal Communications Comission, 474 F.2d 724 (2d Cir. 1973); and Western Union Telegraph Co. v. United States, 267 F.2d
o.
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l 715,722(2noCir.1959).
It has been held that the FCC has authority to issue orders under Section 1541 to persons whether licenwd or not.
Uniteo l
Statesv.SouthwesternCable,392U.S.157at18081(1968).
Section 1611 pruvices broad authority to issue orders as the Comission t
deems necessary to govern any activity authorized pursuant to the Atomic f
Energy Act in oroer to protect the public health and safety. Section 161b similarly authorizes the Commission to issue orders to establish standards and instructions to govern the possession and use of special nuclear materi61, source matertel, and byproduct material. As relevant here, Section 1610 authorize 3 the Comission to order reports os may be necessary to effectuate f
the purposes of the Act.
l Given this broso statutory authority, it is appropriate to omend 10 C.F.R. I 2.202 to have the procedural, mechanism in place to issue orders, ab necessary, to unlicensed persons when such persons have deuunstreteo that future control over their activities subject to the HRC's jurisciction is r
deet.wd to be necessary or desirable to protect public health ano safety or to
- I minimize danger to life or property or to protect the comon defense anu l
security. This amendment would revise i 2.202 to establish that mechanism f
both as to a licensee, as the current i 2.202 provides, and to any person
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subject to the jurisdiction of the Comission.
Such a person includes, but is not limited to, a person who helo e license or who was otherwise engaged in licensed activities at the time of the conduct in question, but who no longer I
I holds a license or is so engaged.
In addition, the procedural mechanism for issuing orders to show cause to l
licensees and other persons would be set forth in a separate sectinn in order f
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6-to make it clear that the right to e hearing does not attach at the time of issuance of. shvw cause order. Orders, including orders to show cause, currently are issued under i 161 of the Atomic Energy Act of 1954, as cuended.
l which are implementeo by li 2.202 (order to show cause), and 2.004 (vrder for modification of license).
In addition, civil penalty orders are issued under l
Section 234, implemented by i 2.205 (civil penalties).
HRC practice comonly has been to issue a single order, an order to show cause, which requires that certain information be provided to demonstrate why either e proposed or ime-distely effective action modifying, suspending, or revoking a license should not be ta ken. The order affords a hearing with regard to these actions.
While i 189 of the Atomic Energy Act provides for the granting of a hearing in connection with proceedings to modify, suspend, or revoke a license, neither the Act nor the Auministrative Procecure Act would require a hearing in con-nection with an crcer to show cause which requires only the submission vf infomation, but ooes not by its terms modify, suspend or revoke a license.
The Act does not explicitly set out the form or requirements for an order to show cause.
The Act ooes, however, authorize the Commission to collect L
inf ormation pursuant to il 161c and o and the Cvumission may issue show cause orders to implement this autnority.
Section 182 of the Act authorizes the Cumission to request information from licensees and the Commission hos implemented this authority by promulgating regulativos such as 10 C.F.R.
I50.54(f). Licensees subject to Comission requests under 10 C.F.R.
I 50.54(f) or its equivalent in nther parts of the HRC's regulations have no hearing rights under the Act reg 6rding these information requests.
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Accordingly, to clarify that hearing rights do not attach to show cause j
orders, the Comission proposes to separate its order to show cause authority from the Commission's general orcering authority contained in i 2.202. The l
provisions concerning urders to show cause are set forth in a new i 2.204 Under the propuseo rule changes, an order to show cause will be issued only to require the submission of infomation.
If en order to show cause is issued as
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f part of an order requiring action, hearing rights will be offered but only j
with respect to the provisions of the order requirieig action.
l In order to avoid unnecessary duplication in the regulations, it is proposed that the current i 2.204, " Order for modification of license," be j
deleted fron Part 2, since procedures for modification of a license are included in proposed i 2.202. Proposed i 2.202(f) provides that if the action l
ordered by the Comission constitutes o b.ackfit of a Part 50 itcensee, the procedures described in 10 C.F.R. I 50.109 must be followed.
This provision currently appears in the last sentence of i 2.204.
f Section 2.202 15 also revised to provide that if the licensee or other i
r person to whom an order is issued consents to its issuance, or the ordar j
confirms ections agreed to by the licensee or such other person, such consent ur agreement constitutes a waiver by the licensee or such other person of 4 i
right to a hearing and any associated rights.
Such orders will be imediately effective. This is not a oeparture from current Comission practice, but
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merely conforms the Comission's regulations to such practice. Section 2.202(d) also provides that the licensee's or other person's agreement to an order must be in writing.
The addition of this provision is intended tv minimize the possibility of issuance of a confiruatory orcer wnich does not f
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8-accurately reflect the agreement reocheu by the parties.
Whether or not the Itcensee or other person consents to any order, a person aaverseiy affected by an order issued unoer i 2.202 tv mootfy, suspend or revoke a license will be 1
offered an opportunity for a hearing pursuant to i 189 of the Atomic Energy Act, consistent with current practice ano the authority of the Comission to
,See,Bellotti v. HRC, 725 F.2d 1380 (D.C.
define the scope of the proceeding, e
Cir. 1983).
The existing i 2.202 vests authority to issue orders in the Executive Director for Operations (EDO), and vartuus staff office directors. Currently, the rule limits the ED0's authority to issue orders to emersency situations.
Existing i 2.204 vests authority to issue oroers in the Commission. The revised rules consistently vest such authority in the Commission, ler.ving it to the Commission's internal delegation a.uthurity to delegote such authority to others. This change will avoid the need to amend the regulations each time the title of one of the currently unumerated officials is changed, and it will also remove the unnecessary limitation on the ED0's authority.
The conmission is retaining, in new i 2.202(e), o provision that, upon a finding that the public health, safety or interest so requires or that the violativn is willful, the proposed action may be imecihtely effective. A similiar provision appears in current il 2.202(f) and 2.204 A finding, in an order, of the need for immediate effectiveness is final and not subject to i
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administrative ch611enge. 1/ Relief from the requirements of en siwooiately I
effective order, on the other hand, may be sought under the relaation L
provisions containes in that order, or by notion for e stay to the presiding officer if a hearing has been requested.
The proposed rule also continues, in i 2.202(f), the backfitting i
requirements of i 50.109, including the provision therein t. hat when imnediately effective action is required, the documented evaluation may l
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follow, rather then precede, the reguletory action.
i finally, consistent with the changes to il 2.000 and 2.204, 6 2.1 is i
emenced to specify that the scope of Part 2 includes the issuance of orders and orders to show cause to unlicensed persons, and i 2.700 is amended to l
specify that Subpert G (Rules of General Applicobility) applies to all
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I adjudications initiated by An oroer, rather than just an order to show cause.
The proposet amendinents are procedural in nature.
They do not esteblish the substantive standards or conditions under which the liRC would issue an j
order to a licensed or an unlicensed person. The Commission intenas to a
propose, in a separate rulemaking, a substantive addition to its regulations j
in order to put unlicensed persons on notice that they may be held accountable
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for willful misconduct which undemines, or calls into question, adequate l
protection of the public health and safety.
Once the proposed rules are in f
effect, consistent with the Commission's statutory authority, there will be i
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Of course, the Commission has the inherent power to review, sua sponte, orcers issued by those to whom it has celegated autnority.
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procedural rules governing the issuance ot en order or show cause order not
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only to a licensee, as currently provided, but also to an unlicensed person who willfully causes 4 licensee to be in violation of Counission requirements ur whosa willful misconduct undermines, or calls into question, the adequate protection of the public health and safety in connection with activities regulated by the NRC under the Atomic Energy Act of 1954, as amended.
An example of a situation in which it might be appropriate to issue an order to an unlicensed person is where an employ (e of a corporate licensee
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uight willfully cause that licensee to be in violotion of Counission requirements such that the Conaission does not have reasonable assurance that I
requirements to protect the public health and safety will be followe0 if that t
person continues to engage in activities licensed by the Cownission.
Another example woulu be on unlicensed person who. willfully provides the Commission with materially fnise information; this would not, of course, include such i
persons who, in good f aith, bring inf ormation or make allegations to the flRC concerning safety matters which, after review, are found to be
'l unsubstantiated. Depending on the circumstances in these two cases, it might be appropriate to issue an order to such a person to either prohibit the person from being involved in activities licensed by the Connission or require the person to provice prior notice to the Commission before engaging in licensed activities. These types of conoitions have been used by the
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Connission in settlement of litigation in accordance with 10 C.F.R. 2.203.
Eoward Hines. Jr. Itedical Center, 27 HRC 477, ALJ-68-2 (October 7,1988), and
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I Finlay Testing Laboratories. Inc., LDP-88-17, 27 HRC 586 (1988).
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f This rulunaking establishes the procedures to be useo in issuing crders to licensed and unlicensed persons. The procedures esteblish the mechanism to previos notice of the issuence of an order and to resolve, through adjuoica-i tien, whether e particular oroer is appropriate under the circunstances.
I Environmental Impact:
Categorical Exclusion i
The NRC has determined that this proposed rule is the type of action f
described in categorical exclusion 10 C.F.R. 51.22(c)(1). Therefore neither an environmental impact statement nor an environmental assessment hos been f
prepared for this proposed rule, f
Paperwork Reduction Act Statenent f
This proposed rule contains n.o infor. nation collection requireraents and
,j therefore is not subject to the requirements of the Paperwork Reduction Act of 1960 (44 U.S.C. 3501 et seq.).
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Regulatory Analysis l
l The existing regulations in 10 C.F.R. 2.202 authorize the I:RC, through l
its designatea officials, to institute a proceeding to nodify, suspend, or revoke a license by serview of an orcer to show cause on a licensee.
The i
regulations, as currently written, do not provide proceuures for the NRC to f
take direct action against unlicensed perscns whose willful misconouct c6uses a licensee to violate Commission requireiaents ur places in question reasonable assurance of adequote protection uf the public health ano safety, although l
t such actwo is authorized by the Atouic Energy Act of 1954, as amended. The
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i 6aendments will make the Countssion's Rules of Practice more consisttnt with i
the Comaission's existing statutory authority and provide the appropriate procedurel f ranework to take 4ctiwe, in appropriate cases, in orcer to protect the public neelth and safety. The amendments albo will make clear that l
hearing rights do not attach to orders to show cause, consistent with i 109 of i
tJie Atcuic Energy Act of 1954, as emendre, and the Aaministrative Proccuuru Act.
The propostd rule constitutes the preferred course of action and the cost involved in its prouulgation and application is necessary ano appropriate.
The foregoing discussion constitutes the regulatory entlysts for this proposed rule.
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Regulatory flexibili.ty Certification As requireo by tne Regulatory Fitxibility Act of 1980 (5 U.S.C. 605(b)),
l the Comission certifies that this rule, if coopted, will not have a signif-f Icant economic impact on a substantial number of small entities. The proposea
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i rule establishes the procedural uechanism to issue oroers to show cause to j
unlicensed persons 14. acottion to licensed persons, who were previously i
covered.
The proposed rule, uy itself, does not impose any obligations on i
entities including any regulated entities that may fall within the definition of "small entities" as set forth in i 601(3) of the Regulatory flex 1bility l
Act, or within the definition of "small business" as found in 6 3 of the $ mall Business Act,15 U.S.C. I 632, or within the Small Business Size $tt.ndards found in 13 C.F.R. Part 101. Such obligatiotis would not be created until an i
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erfer is issued, at which time the person subject to the order would have a right to a hearing in accordance with the regulations.
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Backfit Analysis This proposed rule coes not involve any new provisions which would impose backfits as defined in 10 C.F.k. 50.109(a)(1). Accordingly no backfit analysis pursuant to 10 C.F.R. 50.109(c) 15 required for this proposed rule.
List of Subjects in 10 C.F.R. Part 2 Aoministrative practice and procedure, Antitrust, Dyproduct material, Classified information Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalty, Sex discrimination, Source material, Special nuclear material Waste treatment,and disposal.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amenced, the inergy Reorganization Act of 1974, as amended, eno 5 U.S.C. 552 and 553, the NRC is proposing to adopt the following amenoments to 10 C.F.R. Part 2.
Part 2 -- Rules of Practice for Domestic Licensing Proceecings 1.
The authority citation for Part 2 is revised to read as follows:
Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C.
2201, 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C.
2241);sec.201,86 Stat. 1242, as amendeu (42 U.S.C. 5841); 5 U.S.C. 552.
Sec. 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amenced (42 U.S.C. 2073, 2092, t
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2093, 2111, 2133, 2134, 2135); sec.102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat.1248 (42 U.S.C. 5871). Sections l
2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 930, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134,2135,2233,2239).
Section 2.105 also issued under Pub. L.97-415, 96 Stat.2073(42U.S.C.2239). Sections 2.200-2.206 also issued under secs.
161b,i,o,106,234,68 Stat.948-951,955,83 Stet.444,asamended(42 U.S.C. 2201(b), (1), (o), 2236, 2282); sec. 206, 88 Stat.1246 (42 U.S.C.
5646). Sections 2.600-2.606 also issued under sec. 102, Pub. L.91-190, 83 Stat. 853, as mended (42 U.S.C. 4332).
Sectiuns 2.700a, 2.710 also issued under 5 U.S.C. 554 Sections 2.754, 2.760, 2.770, 2.780 also issued under 5 U.S.C. 557. Section 2.764 and Table 1A of Appendix C are also issued under secs.135,141, Pub.L.97-425,96 Stat.2232,2241(42U.S.C.10155,10161).
Section 2.790 also issued under sec.103, 68 Stat. 936, as omended (42 U.S.C.
2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued unoer 5 U.S.C.
553.
Section 2.809 also issued under 5 U.S.C. 553 and sec. 29, Pub. L.85-256, 71 Stat. 579, os ann nded (42 U.S.C. 2039).
Subpart K also issueo under sec.189, 68 Stat. 955 (42 U.S.C. 2239); sec.134. Pub. L.97-425, 96 Stat. 2230 (42 U.S.C. 10154). Appendix A elso istued under sec. 6, Pub. L.91-560, 84 Stat. 1473 (42 U.S.C. 2135). Appendix B 4150 issued undsr sec. 10 Pub. L.99-240, 99 Stat.1842 (42 U.S.C. 2021b et seq.).
2.
I 2.1 is revned to read as follows:
i 2.1 Scope.
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This part governs the conduct of all proceedirgs, other than export and import licensing proceedings oescribed in Part 110, under the Atumic Energy t
Act of 1954, as anended, and the Energy Reorganization Act of 1974, fort (a) granting, suspending, revoking, amending, or taking other action with respect to any license, construction permit, or application to transfer a license; (b) issuing orders and orders to show cause to persunt subject to the Comission's jurisdiction, including licensees and persons not licensed by.the Comission; (c) imposing civil penalties under section 234 of the Act; and (d) public rulema king.
3.
I 2.202 is revised to read as follows:
i 2.202 Orders.
(a) The Comission may institute a procevoing to modify, suspend, or revoke a' license or for such other action as nay be proper by serving on the licensee or other person subject to the jurisdiction of the Conaission on order that will:
(1) Allege the violations with which the licensee or other person subject to the Conaission's jurisdiction is chorged, or the potentially hazardous conditions or other facts deemed to be sufficient ground for the proposed action, and specify the action proposed; (2) Provide that the licensee or other person must file a written answer 4
to the oroer under oath or offirmation within twenty (20) days of its ot.te, or such other titae as may be specified in the order; (3)
Inform the licensee or other person of his right, within twenty (20) days of the date of the order, or such other time as ciay be specified in the l
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order, to demand a hearing on all or part of the order, except in a case where the licenbee or other person nas consented to tne order; (4) Specify the issues; and (5) State the ef fective date of the cruer.
(b) A licensee or other person to whom the Comission has issued on order under this section must respond to the order by filing a written answer under oath or affirmation. The answer shall specifically acmit or deny each allegation or charge mace in the order, and shall set furth the natters of fact and law on which the licensee or other person relles, and, if the order is not consented to, the reasons as to why the order should not have been issued. Except as provided in (d) below, the answer may demand a hvoring.
(c) If the answer demanos a hvoring, the Commission will issue an order cesignating the tirne and place of hearing.
(d) An answkr or stipulation may consent to the entry of an order in substantially the form proposed in the order with respect to all or some of
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the actions proposed in the order.
The consent of the licensee or other person to whora the order has been issued to the entry of an order shall constitute a waiver by the licensee or other person of a hearing, finuings of fact and conclusions of law, and of all right to seek Comission and judiciel review or to contest the validity of the order in any forum as to those f.iutters which have been consented to or agreed to or on which a neariag hos not been requested. The orcer shall have the same force ano effect as on order made of ter heuring by a presiding officer or the Cui.r.itssion, and shall be effective as provioeo in the order, i
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f" b.,
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17 (e) When the Cvunission finos that the public health, safety, or interest so requires or that the violation or conduct c.iusing the violation is willful, the order iaay provide, for stated reasons, that the proposed action l
be immediately effective.
I (f)
If the order involves the modification of a Part 50 license 6nd is a backfit, the requirements of i 50.109 of this chapter shall be followeo, l
unless the licensee has consented to the action required.
4 I 2.204 is revised to read as follows:
6 2.204 Order to show cause.
(a) The Connission may issue to a licensee or other person subject to the jurisdiction of the Con 11ssion an order to show cause why such actions as may be proper should nut be token, which.will:
(1) Allege the violations with which the licensee or other person is charged, or the potentially horardous conoitions or other facts deei.ed to be sufficient ground for the proposed 6ction, and specify the action proposed; and (2) Provide that the licensee or other person must file.i written answer to the order to show cause under oath or affirmation within twenty (20) days of its date, or such other time as riay be specified in the order to show causa.
(b) A licensee or other person to whom the Commission has issued an order to show cause under this section must respond to the order by filing a written answer under oath or offirmation. The answer shall specific 611y admit or ceny each allegation or charge made in the order to show cause, and shall
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i set forth the matters of fact and law on which the licensee or other person relies.
l (c) An answer or stipulation any consent to the entry of 6n order in substantially the form proposed in the order to show cause.
(d) Upon review of the answer filed pursuant to paragraph (a)(2) of this r
section, or if no answer is filed, the Comission mey institute a proceeding pursuant to 10 C.F.R. 2.202 to take the action proposed in the order to show cause or such other action as may be proper.
S.
I 2.700 is revised to read as follows:
$ 2.700 Scope of subpart.
The general rules in this subpart govern procedure in all adjudications initiated by.the issuance of en orcer pursuanttoi2.202,anorderpursuanttoi2.205(e),a notice of nearing, a notice of proposed action issued pursuant to i 2.105, or a notice issued pursu6nt to i2.102(d)(3).
Dated at Rockville, Maryland, this day of 1989.
FOR THE HUCLEAR REGULATORY COMlilSS10tl Samuel J. Chi l k Secretary of the Connission i
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Enel: sura B I'
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i-j DRAFT CONGRESSIONAL LETTER I
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Dear Mr. Chairman:
Enclosed for your information are copies of a proposed rule to be published in the Federal Register.
The Comission is proposing to initiate a rulemaking to revise the Comission's procedures in 10 C.T.R. Part 2 Subpart B. for issuing orders to include persons not licensed by the ComissIon but who are otherwise subject to the Comission's jurisdiction. The proposed amendwnts would more fully reflect the Comission's existing statutory authority to issue orders than is presently the case, and will also clarify the types of Corvnission orders to whit.h hearing rights attach.
Sincerely,
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William C. Parler General Counsel
Enclosure:
As stated l
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