ML20012E765

Staff Requirements Memo Re Revs to Procedures to Issue Orders Under 10CFR2

ML20012E765
Person / Time
Issue date:	02/21/1990
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC)
References
REF-10CFR9.7 NUDOCS 9004060263
Download: ML20012E765 (21)

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MEMORANDUM FOR:

William C. Parler, General Counsel TROM:

[l I el J. Chilk, Secretary r

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SUBJECT:

SECY-89-321 - REVISIONS TO PROCEDURES TO i

I? SUE ORDERS - 10 CFR PART 2 This is to advise you that the Commission (with all Commissioners agreeing) has approved the proposed revision to 10 CFR Part 2, subject to the following comments:

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1.

The Commission agrees with the general approach to separating orders that can affect a licenses from mere demands for information, and agrees that the latter

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need not provide an opportunity for hearing.

However, the rulemaking notice should be clear that this chariges current practice under Part 2.202 and effeccively overrules two earlier NRC decisions on the scope of l

hearing on an enforcement order.

Recommended text to i

cover this point is attached.

Because orders to show l

cause under the new Part 2.204 are to be used solely as demands for information and will no longor carry hearing rights, we should not refer to them as " orders" so as to avoid any confunion with prior practice and to l

dispel any notion that these " orders" trigger adjudicatory procedures under the Atomic Energy Act and l

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the Administrative Procedures Act.

The Commission l

suggests that these " orders" be relabelled " demands to show cause."

i 2.

The draft notice states at page 8 that a finding of

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immediate effectiveness is " final and not subject to administrative challenge."

This sentence should be eliminated because it is seemingly contradicted by the next sentence in the notice which indicates that relief may be sought from the official who issued the order or from the presiding officer in a hearing on the order.

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NOTE:

THIS SRM AND THE SUa7ECT SECY PAPER ARE CONSIDERED TO BE

" FINAL COMMISSION DECISIONS" AND AS SUCH WILL BE RELEASED TO THE PUBLIC UPON PUBLICATION OF THE FEDERAL REGISTER i

NOTICE.

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I The discussion also points to the need to determine whether the existing rules of practice are adequate to deal with challenges to the immediate effectiveness of an order, an issue that arose in the Ein)Ay case in i

1988.

(A response to the March 24, 1988 SRM on i

i SECY-89-78 which deals with the E1DIAy case is presently due to the Commission on February 28, 1990.)

3.

Because this rulemaking attempts a comprehensive revisior, of our rules of practice for issuing enforcement orders, the General Counsel should advise r

the Commission as to whether provisions for issuing orders in subpart G to part 110 can be eliminated.

The purposes of having these separate procedures is not at all clear.

(OGC)

(SECY SUSPENSE 3/9/90)

The rederal Register notice should be revised to accommodate the

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above comments and the attached revisions; reviewed by the Regulatory Publications Branch, of fice of Administration, for conformance to the rederal Register requirements, and returned for signature and publication.

Publication of this rule should i

occur at the same time as publication of the propcsed changes to 10 CTR which would hold unlicensed persons accountable for willful misconduct (SECY-90-22).

(OGC)

(SECY SUSPENSE:

3/22/90) cc:

Chairman Carr Commissioner Roberts Commissioner Rogers commissioner curtiss Commissioner Remick EDO GPA I

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Enclosure A f

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NUC(EAR REGULATORY COM415510N l

10 C.F.R. Part 2 l

l Revtstons to Procedures tu !ssue Oroers t

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Nuclear Regulatory Comission.

I AGENCY:

f I Proposed rule.

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The Nuclear Regulatory Conuntssion (NRC) proposes to rsons not lice'ised by Comnissions proceoures for issuing orders to inc ude. f

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l the Comission but who are otherwise sub e ffect the Comission's existing l

The proposed revisions would more accurately re Therevision/

ly the case.

statutory authority to issue veders than is p i

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nisu blication in the i

1 The coment pr iod expires on (60 days af ter pud if it Coments received after this date will be cf a

DATES:

deration cannot be given except Federal Register).

is practical to do so, but assurar.ce of consi l

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as to coments received on or before this date.

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i sion, U.S.

Sand written coments to the Secretary of the Com s l

l Docketing and C 20555, Attentions Nuclear Regulatory Comission, Wshington, D f

ADDRESSES:

f the Coments may also be delivered to the Office o l

One Whtte Flint North,11555 t

Service Branch.

l Secretary, U.S. Nuclear Regulatory Comission,7:30 a.c. ana 4:15 Rockville Pike, Rockville, Maryland, between l

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i d for a fee et the Copies of any coer.ents recer.ed may be examined and cop e l

DC between the hours 1

HRC Public Document Room 2120 L Street, ilW, Washington,

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I of 7t45 a.m. and 4: 15 p.m. weekdays.

Mary E. Wagner, of fice of the General l

FOR FURTHER INFORMATION CONTACT: D.C. 20555, f

Ccunsel, U.S. Nuclear Regulatory Comission, Wasnington, l

t 301 492-1683.

Tslepnones t

i SUPPLEMENTARY INFORMATION:

Background

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te formul The procedures to be followed by the Comission to in tiaf Praf l

enforcement action are found in the Comission's Ru l

in 10 C.F.R. Part 2, Subpart B.

d in i 2.202, orders to i

oescribed in i 2.201, show cause orders, descr bel penalties, d modify licenses, described in i 2.204, and civi i

dures in i 2.205.Until 1983, with the exception of the civil penalty proce l

At ll to itcensees.

i 2.205, the langvege in these procedures referred to e y's re i

i that time, it was twcognitto that the Com ss on f violation to an unlice a procedural mechanism to issue a formal notice od Comission re f

person (corporate or individual) who had violate dures in i 2.201 did not For example, by referring only to licensees, the proceho posses address issuing a notice of violation to a person wComission i

material without a iteense in violation of f 10 C.F.R. Part 21, whi l

unlicensed person who violated provisions o l

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implements Section"2C6 of the Ene/rgy Reorganization Action of)197 n

yg Consepently, the Comission amenced its regulittions to permit the issuance ok

,y notices of violations to unlicensed persons who violated Comission requirements.

Changes were published in the Feovral Register on $vptember 28, i

1983 (48 FR 44170) to amend i 2.200 (Scope of subpart) ano i 2.201 (Notice of I

violation) to aco the phrase "or other person subject to the jurisdiction of l

the Commission."

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As stated above, the provisions for issuing show cause orders only l

acoress licensees 73Homosser,.Ir Comission's ststutory authority to issue l

orders, which is found in Svetion 161 of the Atomic Energy Act of 1954, as sdek 4 heessets m ndeo, 42 U.S.C. I 2201, is not f limitedj in f act, the Cotanission's Atomic Energy Act authority to issue orders is extremely broad vxtending to any person (defined in Stetion 11s to include, e3, any inoividual, w

corporation, federal, state eno local agency) who engages in conduct within the Comission's subject matter jurisdiction. The few court cases wnten deal f

i with the scope of the general authority Congress has granted the Comission usually do so in a general discussion or in passing and conclude that l

Svetion 161 confers uniquely broad and flex 1ble authority on the Comission.

l See Power Reactor Dev. Co. v. International Union of Elec. Radio and flocn.

Workers.AFL-CIO,367U.S.396(1961) Connecticut Light and Power Co. v.

Nuclear Regulatory Comm'n, 673 F.2d $25, 527, n. 3 (D.C. Cir.1982)

New Hampshire v. Atomic Energy com'n, 406 F.2a 170,173-74 (1st Cir.1969)

Siegel v. Atomic Energy Com'n, 400 F.2d 779, 783 (D.C. Cir.1968)i but ef.

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Reynolds v. United States, 286 F.2d 433 (9th Cir.1960) (interpreting Svetion 1611 in detail anc holding, in the context of the AEC's bomb testing

l activities, that Section 1611(3) authorized the AEC to take action to 90vern i

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the activities of private licensees and not the activities of the Commission l

itself; the court's use vf the word " licensee" is dictum with regard to the f

ters in the context of this notice).

l Cases analyzing the Federal.Comunications Comission's (FCC) enabling j

statute, which, in many ways, is analogous to the 1954 Act, also support the principle that the Comission's authority is broad in scope. The Federal I

Cordnunications Act of 1934 (the 1934 Act) broaaly authorizes the FCC to 'make j

such rules and regulations, and issue such cruers, not inconsistent with [the

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1934 Act), as may be necessary in the execution of its functions", 47 U.S.C.

i1541(1982). This provision is similar to Section 1611(3) of the Atomic,

f Energy Act of 1954, which authorizes the Comission to " prescribe such rules.

l regulations, and orders as it may deem necessary to govern any activity l

autnorized pursu6nt to tne [ Atomic Energy Act of 1954)... In urcer tu f

protect health ano to minimize aanger to itfe or property...." 42 U.S.C.

i i2201(1)(3)(1982). A number of cases have analyzed Section 1541 in detail i

i and determined that the FCC's orcering authority is necessarily Drcad.

i See Federal Comunications Comission v. National Citizens Coumittee it..

I Broadcasting, 436 U.S. 775 at 793 (1978); Unitea States v. Storer i

Broadcasting Co.

351 U.S.192 at 203 (1955); National Breaccanting Co. v.

UnitedStates,319U.S.190at196(1943); Lincoln Telephone and Telegraph Co.

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v. Federal Cornmunications Comission, 659 F.2d 1092 (D.C. Cir.1981); American l

Telephone and Telegrapn v. Federal Communications Cumission, 487 F,2d 865 (Ju

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Cir.1973); GTE Service Corp. v. Federal Communications Comission, 474 F.2d l

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724 (2d Cir. 1973); and Western Union Telegraph Co. v. United States, 267 F.2u l

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715,722(2ncCir.1959).

It has been held that the FCC has authority to issue orders under Section 1541 to persons whether licenwd or not. Unitec States v. Soutnwestern cable, 392 U.S. 157) 81(1968).

Section 1611 pruvioes broad authority to issue orders as the Corsiission deems necessary to govern any activitf authorized pursuant to the Atomic Energy Act In oroer tu protect the public health and safety. Section 161b similarly authorizes the Comission to issue orders to establish standards and instructions to govern the possession and use of special fiuclear naterial, source material, and byproouct naterial. As relevant here, Section 1610 authorizes the Comission to order reports os may be necessary to effectuate the purposes of the Act.

Given this broso statutory authority, it is appropriate to emend 10 C.F.R. I 2.202 to have the procedural anechanism in place to issue orders, as necessary, to bnlicensed persons when such persons have demonstratto that future control over their activitivs subject to the NRC's jurisatetton is deemed to be necessary or desirable to protect public health ano safety or to l

minimize danger to lif v cr property or to protect the common defense anu security. This amendment would revise i 2.202 to establish that nochanism 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 hela a license or who was otherwise engaged in L

licensed activities at the time of the conduct in question, but who ao longer 1

i holds a license or is so engaged.

I.n addition, the proceoural mechanism for issuing orders to show cause licensees and other persons would be set forth in a separate section in order

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to make it cl er that the right to a hearing does not attegh at the time of I

issuanceofj:52n:n:r-Orders, including orders to show cause,

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currently are issued under i 16), of the Atomic Energy Act of 1954, as auenced, wnichareimplementrobyli2.202(ordertoshowcause),and2.204(vrderfor modificationoflicense).

In addition', civil penalty orders are issued under i

i section 234, implemented by i 2.205 (civil penaltivs).

HRC practice cosmonly j

has been to issue a single order, an order to show cause, which requires that j

t certain information be provided to demonstrate why either a proposed or imme-dietely effective action modifying, suspending, or revoking a license should i

not be taken.

The order afforos a hearing with regard to these actions, j

While i 189 of the Atomic Energy Act provides for the.grenting of a hearing in

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connection with proceedings to modify, suspenc, or revoke a license, neither the Act nor the Acministrative Proc =oure Act would require a hearing in con.

i nection with an creer to show cause which requires only the submission vf l

information, but cows not by its tems modify, suspend or revoke a license.

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l The Act does not explicitly set out the form or requirements for an order j

to show cause.

The Act ooes, however, authorize the Comission to collect information pursuant to il 161c and o and the Coumission may issue show cause ordern to implement this sutnority. Section 182 of the Act authorizes the Comission to request information from licensevs and the Comission nas implemented this authority by promulgating regulations such as 10 C.F.R.

t i50.54(f). Licensees subject to Comission requests under 10 C.F.R.

i 50.54(f) or its equivalent in other parts of the NRC's regulations have no hearing rights under the Act regarding these information requests.

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Accordingly, to clarify that hearing rights do not attach to %how cause" i

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d erwrt, t Comission proposes to separate its oroery to show cause p

froia the Comission's general orr.,ering authority contained in i. 2.202.T31stTioapoict q cm-(wiew. wl %.rdtes viv4.AA I rwited 4 2 2.0 7 3 avcA

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% m, rovisions concerning s tu show cause are set forth in a new i 2.204 g

j Under the proposto rule changes. -a show cause will be issued only to

a. m require the submission of infor1 nation.

If ommeeser to show cause is issued as

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part of an orcer requiring actionf, hearing rights will be offered but only l

with respect to the provisions of the orcer requiring action.

CMS @N In order to avota unnecessary dupitcation in the regulations, it is I

proposed that the current i 2.204, " Order for modification of license," be i

i deleted fron Part 2, since procedures for inodification of a license 4re l

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included in proposed i 2.202.

Proposeo i 2.202(f) provides that if the action ordered by the Comission constitutes a b.ackfit. of a Part 50 licensee, the procedures desertbed in 10 C.F.R. i 50.109 must be followed.

This provision currently appears in the last sentence of i 2.204 Svetion 2.2021s also revised to provide that if the licensee or other l

person to whom an order is issued consents to its issuance, or the ordar confirms actions agreed to by the licensev or such other person, such conssiit ur agreement constitutes a waiver by the licensee or such other person of 4 right to a hvering and any associated rights.

Such orders will be imediately i

effective. This is not a ceparture from current Comission practice, but merely confurins 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 intenovo tv minimize the possibility of issuance of a conficuatory orceqwnien does not W

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insert - page 7 This revision to the regulations governing orders changes the rule in Dairyland Power Cooperative, LBP40-26,12 NRC 367, 370 72 (1980) and j

Consumers Power Company, CLl-73 38, 6 AEC 1082 (1973), by setting the l

Point at which a "proceedin9" begins for purposes of triggering the adjudicatory rights under 6L$9 of _the Atomic Energy Act to the point of j

gLissuance of an order compelling a licensee or other person to take or refrain from certain actions rather than the point where the agenc l

merely deeends information to show why no action should be taken. yThe change in practice is consistent with the Commission's power to define the scope of its proceedings, see Bellotti v. NRC, 725 f.2d 1380 i

(D.C. Cir.1983).

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i accurately reflect the agreement reachew by the parties. Whether or not the i

Itcensee or other person consents to any orcer, a person aoverse'.y affected by an order issued unser i 2.202 tu modify, suspend or revoke a license will be i

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

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define the scope of the proceedingj See B61lotti v. IIRC, 725 F.2d 1380 (D.C.

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The existing i 2.202 vests authority to 1ssue orders in the Executive

~7 Director for Operattuns (EDO), and varivus staff office directors.

Currently, f

the rule limits the ED0's authority to issue orders to emergency situatiuns. J

• f Existing i 2.204 vests authority to issue orcers in the Comission>Ghv h

g, revised rules consistently vest such authority in the Comission,'lveving it j

to the Comission's internal delegation authority to delegote such outhority I

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to others. This change wili avoid tne need to amend the regulations each time

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tne titiv uf one of the currently enur.4 rated officials is changed, ano it will also remove the unnecessary limitation on the ED0's authority, i

t The Corsnission is retainir.g. in new i 2.202(e), e provision that, upon a finding that the public health, safety or interest so requires or that the

gauit, violation is willful, the propused action may be,insneciately effective [A similiarprovision4ppearsincurrentyi2.202(f)andf2.204 L 'E -' ;.

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effective order, un the vther hand, may be sought under the ralexation l

p provistuns containes in that order, or by motion for a stay to the presiding

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i officer if a hearing has been requested.

i The proposed rvle also conti,nues s in i 2.202(f), the backfitting j

requirements of i 50.109, inclueing the provision therein that when l

immediately effective action is requirad, the documented evaluation may follow, rather then precede, the regulatory action, Finally, consistent with the changes to il 2.002 and 2.204, i 2.1 is emenovd to specify that the scope of Part 2 includes the issuance of orders

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and eM to'show cause to unlicensed persons, and i 2.700 is amenced to

• 6pecify that Subpart G (Rules of General Applicebility) applies to all gW acjuuications initiated by an orcer, h Wg

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The proposed. amendments are procedural in nature. They do not establish r

N1 the suostantive standards or conditions under which the NRC would issue an g[,

c,rder to a licensed or an unlicensed person. The Commtssion intenos to propose, in a separate rulemaking, a substantive addition to its regulations 4

in order to put unlicensed persons on notice that they may be held accountable e

for willful misconduct which undemines, or calls into question, adequate protection of the public health and safety.

Once the proposed rules are in I

effect, consistent with the Consntssion's statutory authority, there will be

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I precedural rules governing the issuance of an urder or show cause urder not ely to a licensee, as currently providea, but also to an unlicensed p rson I

i een willfully causes a licensee to be in violation of Comission requirements I

wr whose willful misconduct undermines, or calls into cuestion, the adequate protection of tre, public health a6d 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 appr0priate to issue an j

b order to an unlicensed person is where an employee of a corporate Itcensee l

soths willfully cause that licensee to be in violation of Curaission j

requirements such that the Consatssion does not have reasonable assurance that j

i requirements to protect the public health and safety will be followse if that person continues to engage in activities Itcensed by the Comusion, h....:..c r a t

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Depending on the circumstances in %seenseqcases, it might r

ha appropriate to issue an order to such a person to either prohibit the j

person from being involved in activities Itcensed by the Comission or require l

the person to provide prior notice to the Cummission before engaging in f

i bcensed activities. These types of concittons have been used by the i

Ctamnission in settlement of litigation in accordance with 10 C.F.R. 2.203. A l

Emerd Hines Jr. Iledic.1 Centve, 27 NRC 477. ALJ-68-2 (Octcber 7,1988), and l

Finlay Testing Laboratories, Inc., LBP-88-17, 27 HRC 586 (1988).

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l 11 This rulemaking vstablishes the procecures to be useo in issuing crders r

to licensed and unlicenseo persons. The proceoures =>tablish the evenanism tv l

provice notice of the issuence of an order and to resolve, through adjuoica-l tion, whether e particular croer is appropriate under the circumstances.

Environmental Impact:

Categorical Exclusion j

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 i

en environmental impact statement nur an environmental assessment has been l

prepared for this proposeo rule.

Paperwork Reduction Act Statement This proposec rule contains no information collection requirements and therefore is not subject to the requirements of the Peperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).

Regulatory Analysis i

The existing regulations in 10 C.F.R. 2.202 authorize the NRC, through t

its designates officials, to institute a proceeding to modify, suspend, or revoke a license by serview of an oroer to show cause on a licensee.

The regulations, 45 currently written, do not provide procedures for the NHC to t

take cirect action against un11censeo persons whose willful misconouct c6uses a 11censee to violate Commission requirements or places in question ressunable assurance of adequate protection of the public health ano safety, although such action is authorized by the atouic Energy Act of 1954, as amended. The j

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l f l 6senements will make the Comission's Rules of Practice more consistent with the Ccauiission's existing statutory authority ano provice the appropriate procedurel framework to take utiv.i, in appropriate cases, in orcer to protect j

the public neeltn ano safety.

The eriundswnts also will make clear that f

hearing rights do not attach to orcers to show cause, consistent with i 149 uf l

r the ntuuic Energy Act of 1954, as amended, and the Aaministrative Proceuvre l

Act.

i The propossd rule constitutes the preferreo course of action end the cost invulvec in its proi.wigation and application is necessary and appropriate.

The forvvving ciscussion constitutes the regulatory analysis for this proposed rule.

I Regulatory flexibili.ty Certification l

As requireo by tne Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)),

the Commission certifies that this rule, if scopted, will net have e signif-icant economic impact un a substantial nuirher of smil entities. The proposeo i

rule establishes the procedural sacchanism to issue oroers to show cause to unlicensed persons ti. soottion to licensed persons, who were previously j

cuvered. The proposed rule, by itself, does not inapose any ebligations on t

l entities including any regulated entities that may fall within the definition of "small entities" as set forth in i 601(3) of the Regulatory Flexibility l

Act, or within the definition of "smil business" as found in i 3 of the Small l

Business Act,15 U.S.C. I 632, or within the Small Business Size Str.ndards found in 13 C.F.R. Part 121.

Such obligations would not be created until an i

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oreer is issued, at which time the person subject to the order would hav, f

right to a hearing in accordance with the regulations.

Backfit Analysis This proposed rule coes not. involve any new provisions which would impose f

backfits as defined in 10 C.F.k. 50.109(a)(1). Accordingly no backfit i

analysis pursuant to 10 C.F.R. 50.109(c) is required for this proposed rule.

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List of Subjects in 10 C.F.R. Part 2 Aoministrative practice and prncedure, Antitrust, Dyproduct material, f

Classified information Environmental protection, fluclear materials, Nuclear I

power plants and reactors, Penalty, Sex ciscrimination, Source rmerial, 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 amenord, the Energy Reorganization Act of 1974, as amended, ana 5 U.S.C. 552 and $53, the liRC is proposing to adopt the I

following amenoments to 10 C.F.R. Part 2.

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Part 2 -- Rules of Practice for Domestic Licensing Procevoings 1.

The authority citation for Pirt 2 is revised to read as follows:

Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C.

22U1, 0031); sec.191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C.

i 2241); sec. 201, 86 Stat.1242, as amendeu (42 U.S.C. 5841); 5 U.S.C. 552, i

Sec. 2.101 also issued under secs. 53, 62, 63, 81, 1C3, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amenced (42 U.S.C. 2073, 2092, i

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/8S 2093, 2111, 2133, 2134, 2135); sec.102, Pub. L.91-190, 83 Stat. 8!3 as amended (42 U.S.C. 4332); sec. 301, S8 Sta t.1248 (42 U.S.C. 5371).

Sections 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,1,]106, 234, 68 Stat. 948-951, 955, 83 Stat. 444, es emended (42 U.S.C. 2201(b), (1), (o), 2236, 2282); sec. 206, 88 Stat.1246 (42 U.S.C.

S646). Stettons 2.600 '.606 also issued under sec. 102, Pub. L.91-190, 83 t

Stat. 853, as mended (42 U.S.C. 4332).

Sections 2.7004, 2.710 also issued under 5 U.S.C. 554 Svetions 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 (42 U.S.C. 10155, 10101).

Section 2.790 also issueo under sec.103, 68 Stat. 936, es emendeu (42 U.S.C.

2133)and5U.S.C.552.

Sections 2.800 and 2.808 also issued unoer 5 U.S.C.

553.

Section 2.809 elso issued under 5 U.S.C. 553 anu sec. 29, Pub. L.

85 256, 71 Stat. 579, es alik 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 also issued under sec. 6, Puo. L.91-560,84 Stat.1473(42U.S.C.2135). Appendix 8 150 issued under sec.10 Pub. L. 99 240, 99 Stat.1842 (42 U.S.C. 2021b vt seq.).

2.

I 2.1 is revised to reed as follows:

G 2.1 Scopw.

w

, 1 3

This part governs tne conduct of all proceedings, other than export and 1 aport licensing proceedings cescribed in under the Atumic (nergy f

w D

Act of 1954, as amended, and the Energy Kvorgantaation Act of 1974, for:

(a) etham !

granting, suspending, revoking, amending, or taking oth9r action with respect

• th to any license, construction permit, or application to transfer a Itcense; (b) w yQw issuing orders and show cause to persons subject to the Comission's jurisdiction, including licensees and persons not licensed by tne Comissiont (c) imposing civil penalties under section 234 of the Act; and (d) public rulemaking.

I 3.

I 2.202 is revised to rved as follows:

i 2.202 Orders.

l (a) The Comiss r.

nstitute a,procevoing to modify, suspend, or revoke a. license or der such other action as may be proper by serving on the j

licensee or other person subject to the jurisdiction of the Comission an oroer that will:

t (1) Allege the violations with which the licensee or other person subject to the Comission's jurisaiction is charged, or the potentially hazareous conditions or other facts deemed to be sufficient ground for the l

proposed action, and spectfy the action proposed; (2) Provide that the licensee or other person must file a written answer t

to the orcer under oath or eff trmation within twenty (20) cays of its cate, or l

i such other time as may be specified in the orde g

gA j

(3)

Inform the licenser or o ivr person /of his right, within twenty (20)

[

days of the date of the order, or such other time as may be specifico in the 7

f' 1

• o i

- 16 =

order, to demand a hearing on all or part of the order, except in a case ehere m wri+ig the licensee or other person nas consented,to tne ordert Specify the issue ( & %1 (4) and (5) State the effective date of the oroer.

(b) A licensee or other per. son to whom the Comission has issued n order under this section must respond to the order by filing a written answer under oath or affirmation.

The answer shall specifically aamit or deny vech allegation or charge meet in the order, and shall set forth the natters of f act sted law on whicn the licensee or other person relits, and, if the order is not consented to, the reasons as to why the order snould not have been issued. Except as provided in (d) below, the answer may demand a hvaring.

(c) If the answer costanos a hearing, the Comission will issue an creer avsignating the time and place of hearing, (d) An answer (- " 'dmay costsent to the entry of an orcer in substantially the form proposed in the order with respect to all or some of the actions proposed in the order.

The consent of the licensee or other persut to whom the order has been issuva 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 411 right to seek Comission and judiciel

{

review or to contest the valicity of the order in any forum as to those cetters which have been consented to or agreed to or on which a neariag has not been requested. The oroer shall have the same force ano effect as en order made efter hearing by a presiding officer or the Cui.raission,'and shall be effective as proviceo in tne order, i

p.-

l1

)

(e) When the Cumission finos that the public heelth, safety, or interest to requires or that the violation or conduct causing the violation is utilful, the order saay provide, for stated reasons, that the proposed action be immedt.'91f effectiveg'g [$rarody; (f) If the order involves the modification of a Part 50 license 6no is a backfit, the requirements of i 50.109 of this chapter shall be followee, i

ualess the licensee has consented to the 6ction required.

4 I 2.204 is revised to read as follows:

6 2.204 *=

Thowhuse (4) The Comission may issue to a licensev or other person subject to oleW<d the jurisdiction of the Commission 46 ;ccei to show cause why such actions as may De proper should not be teken, which.will:

(1) Allege the violations with which the licensee or other person is charged, or the potentially hazardous conditions or other facts deemed to be sufficient ground for the proposed 6ction, and specify the action proposed t

and (2) Provide that the licensee or other person must file a written answer ottud 40 ML to the eew snow cause under oa'th or affirmation within twenty (20) days 3

g eleuud of its date, or such other tiras as may be specified in the onder to show cause.

(b) A licensee or other person to whom the Commission has issued an elemad ede e ch weer to show cause under this section must respond to the endso-by filing a written answer under oath or affirmation. The answer shall specifically admit or deny esch allegation or charge made in the order to show cause, and shall

i l<

)

i 18 l

set forth the matters uf fact and law on which the licensee ur other person f

relies.

i e

(c)

An answer g ni.'.. g may consent to tna entry of 6n order in j

r substantially the form proposed in the order to show cause.

i (d) Upon review of the answer filed pursuant to paragraph (e)(2) of this section, ur if no answer is filed, the Comission m4y Institute a proceeding A-w pursuant to 10 C.F.R. 2.202 to take the action proposed in the easemer'9 show M

cause or such other action as m y be proper.

i 4o Mo i

5.

I 2.700 is revised to read as follows:

f i 2.700 Scope of subpart.

i The general rules in this subpart govern procedure in all adjuutcations initiated by the issuance of en orcer g

pursuan.t to i 2.202, an order pursuant to 9 2.205(e), a j

. notice of nearing, a notice of proposed action issued' pursuant to ! 2.105, or a notice issued pursu6nt to i 2.102(d)(3).

ateo at Rockville, HaryieEh y

Sktbb L

is dey of 198 h g

y fb FOR THE llVCLEAR REGULATORY COM!!!SSI0ll f

I i

Santuel J. Chiik Secretary of the Comission

/

.