ML20042F690
| ML20042F690 | |
| Person / Time | |
|---|---|
| Issue date: | 03/28/1990 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-55FR12374, RULE-PR-110, RULE-PR-150, RULE-PR-30, RULE-PR-40, RULE-PR-50, RULE-PR-60, RULE-PR-61, RULE-PR-70, RULE-PR-72 PR-900328, NUDOCS 9005090257 | |
| Download: ML20042F690 (41) | |
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10 CFR Parts 30, 40, 50, 60, 61, 70, 72,110 and 150 l
RIN: 3150-AD38 j
j Willful Misconduct by, Unlicensed Persons AGENCY:
Nuclear Regulatory Commission.
ACTION:
Proposed rule.
P
SUMMARY
- The Nuclear Regulatory Comission (NRC) is proposing to revise its regulations to put unlicensed persons on notice that they may be subject to enforcement action (1) for willfully causing a licensee to violate any of the Commission's requirements or (2) for other willful misconduct that (a) arises t
outofactivitieswithinthejurisdictionoftheNRCand(b)placesinquestion l
l the NRC's reasonable assurance that licensed activities will be conducted in a manner that provides adequate protection to the public health and safety.
The proposed rule would sub,iect a person who engages in that conduct to i
enforcement action under existing regulations.
This proposed rule will enable the Commission to better address willful misconduct that places in question the reasonable assurance that licensed activities will be conducted in a manner that will provide adequate protection of the public health and safety.
h DATES:
The coment period expires'. June 18, 1990.
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4 3 9005090257 900320 Q
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Coments received after this date will be considered if it.is practical to do so, but assurance of consideration is given only for comments filed on or before that date.
ADDPESSES: Mail written comments to:
Secretary, U.S. Nuclear Regulatory Comission, Washington, D.C., 20555, Attention: Docketing and Service Branch.
Deliver coments to One White Flint North,11555 Rockville Pike, Rockville, Maryland 20852, between 7:45 am and 4:15 pm Federal workdays. Copies of_ coments received may be examined at the NRC Public. Document Room, 2120 L Street NW (Lower Level), Washington,DC.
j FOR FURTHER INFORMATION CONTACT: James Lieberman, Office of Enforcement, U.S.
. Nuclear Regulatory Comission, Washington, DC 20555, telephone: (301)492-0741.
1 l
SUPPLEMENTARY INFORMATION:
l Over the years, the Comission has in most cases issued licenses to organizations rather than individuals.
Likewise, the Comission's enforcement program holds the licensees responsible for not only the conduct of operations, but I
also for the conduct of their employees, consultants, or. contractors.
Until now, enforcement actions concerning persons who have willfully caused violations of t
Comission requirements or otherwise have engaged in willful misconduct.in L
connection with licensed activities consisted of actions against licensees, including Notices of Violations, civil penalties, and orders modifying the license to direct removal of the individual from licensed activities at the licensed facility where the violation occurred, or orders confirming that the licensee f
has removed an individual from licensed activities.
These actions only I
indirectly reach an individual.
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i 1 These instances of willful misconduct on the part of unlicensed individuals have caused NRC to have reduced confidence that all of these individuals would conduct licensed activities in a manner that adequately protects public health and safety.
This conduct has included deliberate violations of NRC requirements, falsification of records, false statements to the NRC, and interfering with an NRC investigation, as well as other forms of wrongdoing. After becoming aware of such conduct, a licensee may dismiss 'the employee either by its own decision or because the NRC forvally orders removal of the employee from licensed activity.
However, the wrongdoer nmy seek other employment in the same field at another NRC or Agreement State-licensed facility, often without the knowledge of the NRC or knowledge by the new employer of the employee's prior conduct.
The Commission has also noted that willful acts of licensees' contractors, vendors, or their employees have caused licensees to be in violation of Commission requirements.
The Commission believes that additional enforcement options are needed to address directly persons who are not themselves licensees, but are or have been engaged in licensed activities and whose willful misconduct, directly or indirectly, causes a licensee to be in violation of a Commission requirement or places in question the NRC's reasonable assurance of adequate protection of the public health and safety.
" Licensed activities," as used in this rule, includes those actions that enable a licensee to carry out its license. If 1/
Licensed activity as used in this context is a broad term, coextensive
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with the Conu11ssion's jurisdiction, that encompasses all of those activities that a licensee or its contractors, employees, or other agents perform to permit the licensee to carry out activities licensed by the Commission in accordance with Connission requirements, whether performed on or off site.
-4 Accordingly, the Comission is proposing to amend its regulations to put on notice all those who are engaged in any manner in activities subject to the Comission's jurisdiction that they may be subject to enforcement action ior willful misconduct that causes "a licensee to be in violation of any rule, regulation, or order issued by the Comission, or any term, condition, or limitation, of any license issued by the' Comission." The proposed change makes any person who violates this requirement subject to enforcement action in accordance with the procedures of 10-CFR Part 2, Subpart B.
That subpart provides for issuance of Notices of Violat, ion, civil penalties, and orders.
These changes will allow the Comission to utilize the full range of enforcement sanctions, where warranted, against any person willfully violating or causing a violation of Comission requirements. This would include licensee e
employees, vendors, contractors, and consultants, and their employees, and other agents of licensees. The Comission emphasizes that, by taking action against these persons, it does not intend to diminish the responsibility of a licensee i
l for the conduct of its employees and therefore, as appropriate, the Comission
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also will be taking action against the licensee directly.
The proposed regulations focus on willful misconduct. A violation is j
willful if an individual either knew that the conduct was prohibited or showed a careless disregard for whether the conduct was prohibited. Careless disregard has been described as a showing of disregard for a governing statute or an indifference to its requirements. Trans World Airlines, Inc. v. Thurston, 469 U.S.111(1985); U.S. v. Illinois Central Railroad Co. 303 U.S. 239 (1938).
In i
the Comission's statement of considerations for the final rule on Completeness and Accuracy of Information, (52 7R 49362-65; December 31,1987) the Comission noted that willful conduct includes " careless disregard" in that it " connotes a reckless regard or callous... indifference toward one's responsibilities
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... or the consequences of one's actions." The NRC's Enforcement Policy,10 CFR Part 2, Appendix C, General Statement of Policy and Procedure for ilRC Enforcement Actions, states that "wi11 fulness... embraces a spectrum of violations ranging from deliberate intent to violate or falsify to and including careless disregard for requirements." A finding of careless disregard indicates that the person acted with reckless indifference to the requirement, or with disregard (or utter unconcern) of the consequences or whether there was compliance. 'his recklessness involves, at a minimum, an unconcern as to whether a requirement was or will be violated, or a situation in which an indiv,idual blinds himself or herself to the realities of whether a violation has occurred or will occur. This contrasts with violations caused by simple error, misjudgment, miscalculation, ignorance, or confusion on the part of the individual.
In most cases, taking action directly against the licensee should be sufficient for conduct that does not involve wrongdoing, that is, conduct that does not rise at least to the level of careless disregard.
However, this focus on willful misconduct in the proposed regulations should not be construed to condone negligent conduct by a person that causes a violation.
In cases. involving negligent conduct, action against the individual is more appropriately handled within the 1icensee's temedial program.
Cases addressed in this rulemaking where orders are issued are significant mattersinwhich(1)thestaffconcludesthattheperson'sinvolvementinlicensed activities would cause the staff to lose its confidence that there is.a reasonable assurance that licensed activities will be conducted in accordance with the Comission's requirements, and (2) the NRC believes that is has sufficient evidence to prove by a preponderance of the evidence that wrongdoing occurred.
l A situation in which it might be appropriate to issue an order to en unlicensed individual is the case of an employee of a licensee willfully causing 1
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that licensee to be in violation of Comission requirements. As a result of that individual's action, the Comission might no longer have reasonable assurance that requirenients necessary to protect the public health and safety would be followed if'that individual were to continue to engage in activities within the Comission's jurisdiction. Another example where an order to an individual might be appropriate is the case of an unlicensed individual who willfully pro-j vides an inspector, investigator, or other NRC employee with inaccurate or 1
incomplete information on a matter material to the Commission's regulatory I
responsibilities. Additional examples inc,1ude a supervisor who discharges an l
employee for raising safety concerns, a company officer who directs employees to provide false information to the NRC, an employee who falsifies records cf required information, or an employee who willfully defeats alarms that have safety significance.
Depending on the circumstances of these types of cases, it might be appro-priate to issue an order to the individual either prohibiting the individual i
f from being involved in NRC licensed activities, conditioning the individual's involvement in those activities, or requiring the individual to provide prior j
notice to the Comission before engaging in licensed activities in the future.
I The provision for prior notice would permit the Commission to evaluate whether it needs to issue an additional order to prohibit or condition the individual's-involvement in licensed activities or to determine whether increased inspection i
effort is needed.
In addition, the order might require the individual to inform
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future employers licensed by the Comission of the existence of the order.
This would provide some assurance that, should the individual be employed to perform
?icensed activities in the future, the new employer would be aware of the individual's past conduct and ensure that appropriate oversight is in place.
Some of these conditions have been used by the Comission in settlement of-F h
7 litigation in accordance with 10 CFR 2.203. Edward Hines. Jr. Medical Center, ALJ-89-2,28NRC477(1908), and Finlay Testing Laboratories. Inc., LBP.-88-17, 27 NRC 586 (1988).
As a supplement to an order to an individual, the Commission might also order the facility licensee to remove the individual from licensed activities.
This would provide additional assurance that the individual is actually removed.
If the licensee has already removed the wrongdoer, the NRC could issue an order to the licensee confirming the removal and requiring the licensee to notify the NRC if the licensee desires to use the ind.ividual in licensed activities in the future, and to provide the basis for doing so.
These orders could also direct the licensee to advise any prospective employer conducting licensed activities, who inquires about the past employment of the wrongdoer, of the issuance and publication of the removing or confirming order.
These latter requirements may be appropriate because, while the HRC has preferred not to be involved in licensees' employneent decisions, it has become apparent that licensees need more complete background information about prospective employees to make better employment decisions.
In some instances, checking previous employment can be thwarted because employers are of ten reluctant to divulge to prospective employers any derogatory information about former employees, due to state laws and fear of' tort liability. Similar restrictions have been adopted in a final rule of the Federal Railroad Administration, 54 FR 42894 (October 18,1989).
Additional examples of potential application of the proposed rule include i
companies that provide testing services and whose employees willfully supply false data to a licensee in an effort to prevent the licensee from being in violation of 10 CFR Part 50, Appendix B; vendors whose willful false certifi-cation causes a licensee to acquire components that do not meet license l
requirements, such as the ASME code, where recuired; and companies that l
supply components or other items knowing that they do not comply with their certificates of compliance.
In these cases, depending on the circumstances, an order might be issued to the contractor or vendor, prohibiting use of a service, product, or component in licensed activities, or to the employee who had willfully comitted the misconduct, prohibiting that employee's involvement in licensed activities.
The Comission also recognizes that certain misconduct may not be a violation of a Comission requirement. However, when that misconduct occurs in connection with licensed activities or reasonably ref,lects on the ability of the individual to safely undertake licensed activities within the Commission's juristiction and raises a serious question as to whether there is reasonable assurance of adequate
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protection of the public health and safety if the person continues to be involved i
in licensed activities, NRC should have the ability to issue an order to the person involved in the misconduct. Therefore, the Comission is including in the proposed rule a provision that states:
"In addition, the Comission may issue an enforcement order 2/ pursuant to 10 CFR Part 2, Subpart B, to address willful misconduct of persons that arises out of activities within the jurisdiction of the NRC and places in cuestion the NRC's reasonable assurance that licensed activities will be conducted in a manner that provides adequate protection to health and safety of the public."
This provision is intended to address cases in which the willful misconduct does not in itself constitute or create a violation of Comission requirements, either because of the wording of the particular requirement applicable to the activity or because NRC has not yet acted in an area, i.e., drug use by employees of a materials licensee while engaged in licensed activity.
This willful misconduct i
l 2/
The term " enforcement order" refers to an order directed to a person but l
which does not impose a civil penalty.
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4 nevertheless may raise concerns that cause the NRC to question whether there is reasonable assurance that NRC-licensed activities, with that person present, will be conducted in a manner that provides adequate protection to the health and i
safety of the public.
In these cases, where there is a reasonable basis for a regulatory concern, issuance of orders or demands to show cause might be appro-
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priate pursuant to the proposed revision to 10 CFR 2.202 and 2.204.
In deciding when to issue an enforcement order ;the NRC recognizes that judgments will have to be made on a case by case basis.
However, in making
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J these decisions, the NRC will consider factors such as the following:
l 1.
The level of the individual within the organization.
j 2.
The safety consequences of the willful misconduct.
1 3.
The benefit to the wrongdoer, e.g., personal or corporate gain.
4.
The degree of supervision of the individual, i.e., how closely is the individual monitored or audited, and the likelihood of detection (such as a radiographer working independently in the field as contrasted 1
with a team activity at a power pl6at).
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5.
The employer's response, e.g., disciplinary action taken, i
6.
The attitude of the wrongooer, e.g., admission of wrongdoing, ecceptance of responsibility.
7.
The degree of management responsibility or culpability.
8.
Who identified the willful misconduct, i
The orders described above would be issued only for willful misconduct thct bears on the person's ability to carry out health or safety-related responsibilities, j In nest cases, the order would require the person to divulge the existence of the order to a prospective employer or customer involved in licensed activities.
Ordinarily, the Commission would expect to provide a specific time limit for the-(
. provisions of the order, and a process for relaxation of the order.
These orders will. be subject to the procedures and hearing rights of 10 CFR Part 2. 3/
Issuance of the orders described above would have the benefit of making the NRC aware of the person's future involvement in licensed activities for the time specified in the order, so that the NRC may monitor that. involvement as necessary.
It will also provide future employers involved in licensed activity the opportunity to make informed employment decisions, provided that the person complies with the terms of the order and informs the NRC and new employer, as required.
If the person does not comply with the terms of the order, the failure to do so, when identified, could subject the offender to a civil penalty or could be referred to the Department of Justice for criminal i
prosecution.
In a separate rulemaking published simultaneously with this rulemaking, the Commission is proposing revisions to the Commission's procedures in 10 CFR Part 2, Subpart B, to expressly provide for issuance of orders to persons not licensed by the Commission but who are otherwise subject to the Commission's jurisdiction.
Following promulgation of this rulemaking and the Part 2 rulemaking, there will i
be substantive and procedural rules governing the issuance of an order or a l
show cause demand not only to a licensee, as currently provided, but also to an 1
unlicensed person whose willful misconduct causes a licensee to be in violation of Commission requirements or places in question the NRC's reasonable assurance that licensed activities will be conducted in a manner adequate to protect the public health and safety, in addition, Notices of Violation with civil penalties will be
'/
As indicated in the text, a separate rulemaking is underway addressing 3
l procedures for issuing orders. Under that proposal, a hearing will not be provided for a show cause demand because those demands require only a written response, i
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i l authorized for 1.111ful misconduct that causes a licenser to be in violation of Comission requirements.
While civil penalties will not be available for willful misconduct that does not cause a licensee to be in violation, civil peralties are available for violations of all orders issued under the rule.
I In sum, orders to unlicensed persons may include requirements such as:
l 1.
A prohibition against any involvement in NRC-licensed activities, generally for a specified period of time.
l
- 2.. A prohibition against any involvement in NRC-licensed activities until certain conditions are satisfied.,e.g., completing specified training or meeting certain qualifications.
3.
A requirement to notify the NRC before resuming work in licensed activities.
i 4
A requirement to tell a prospective employer or customer engaged in licensed activities that the person has been subject to an NRC order.
Orders to licensees who are employers or former employers of individuals subject to orders may include requirements such as:
1.
Removal of an individual from licensed activity.
2.
A requirement for retraining certain individual (s), as a condition of allowing the person to continue in licensed activities.
3.
A requirement to advise any prospective employer who inquires about an individual of the existence of any order issued to the' individual.
4 A requirement to notify the NRC if the employer rehires or restores the individual to licensed activity, and to state the basis for so doing.
S.
A requirement for additional oversight or independent verification of activities performed by the person, if the person is to continue to i
be involved in licensed activities, l
Ordinarily, requirements such as those listed above will be imposed for a specified period _of time. A person subject to an order may, at any time, request 1
e
' 12 the NRC to relax the order for good cause in accordance with the provisions of the order.
Orders, including orders imposing civil penalties, are published in the FederalRegisterandNUREG-0940,(EnforcementActions: Significant Actions Resolved), and are also the subject of a press release, In addition, the
. Comission intends to establish a system of records that will include a list of all persons currently subject to an order that affects their participation in licensed activities. A list and copies of all currently effective orders will be sent to all power reactor licensee.s twice a year..The list, with i
copies of orders, will be made available to other licensees and members of the public on Iequest.
The Comission believes that these actions will provide greater assurance that licensees will be aware of persons who have been the subject of an ItRC enforcement order. These actions should provide better accountability for employees, consultants, contractors, and vendors in the nuclear industry and increase their responsibility and thus improve the quality of performance, and therefore, the protection of the public health and safety. Use of these orders should also serve as an effective deterrent to wrongdoers and inadvertent employment of wrtngdoers throughout the regulated industry. Adoption of these proposed regulations will not alter the NRC's procedures for referring certain alleged or suspected criminal violations of the Atomic Energy Act to the Depart-ment of Justice for appropriate action, it would be an erroneous reading of the proposed regulations to conclude that conscientious people may be subject to personal liability for mistakes.
The Comission realizes that people may make mistakes while acting in good l
faith, and enforcement actions directly against individuals are not to be used O
. for activitics caused by merely negligent conduct. These persons should have no fear of individual liability under this regulation, as the rule requires that there be willful misconduct before the rule's sanctions may be imposed. The Comission recognizes, as stated in Section E. " Enforcement Actions involving Individuals," of the NRC Policy and Procedure for Enforcement Actions; Policy Statement,10CFRPart2,AppendixC(1989),thatenforcementactionsinvolving individuals are significant actions that need to be closely controlled and judiciously applied.
The Policy also states that action will not be taken against an individha'l if the improper conduct was, caused by management failures.
The NRC Enforcement Pulicy currently requires that all enforcement actions involving unlicensed individuals, and licensed individuals pursuant to 10 CFR Part 55, be approved by the Deputy Executive Director for Nuclear Materials Safety, Safeguards, and Operations Support.
The staff will consult with the
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Comission before taking action directly against unlicensed individuals by order or civil penalty or issuing a civil penalty in the ccse of a licensec reactor operator pursuant to 10 CFR Part 55, il Prior notice will be given to the Commission on Notices of Violation without civil penalties that are issued to unlicer. sed indivicuals and actions taken against other unlicensed persons, such as corporations or partnerships.
Enforcement actions against unlicensed persons, as with other NRC enforcement actions, require the exercise of discretion and will be taken dependent on the circumstances of the case.
At the time of final rulemaking on these matters, the Commission also intends to modify its Enforcement Policy,10 CFR Part 2. Appendix C, to address enforce-ment actions against unlicensed persons. The Policy will be clarified to provide 4/
Consultation with the Comission does not preclude the staff from taking i
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immediately effective action under existing regulatory provisions where I
necessary to protect health and safety, e.g., suspending a license and ordering radioactive sources to be removed, d
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that when the NRC proposes to take escalated enforcement action against an unlicensed person, an enforcement conference will normally be held with that person. The Policy does not now provide for the amount of civil penalty that may be assessed vendors, contractors, or individuals who are subject to civil penalties. Therefore, Table 1A of the Policy will be modified to include vendors and contractors with " Industrial users of material," and "other individuals subject to NRC jurisdiction" will be included with "Other material licensees."
The Comission also intends to include in the Policy examples of when enforcement action might be taken against individuals,. similar to the examples set out in this Statement of Considerations. The Policy will also reflect that a person subject to an enforcement order will be given a right to a hearing and, as stated above, consultation with or prior notice to the Comission will be required.
This rulemaking implements the Commission's authority under the Atomic Energy Act of 1954, as aniended, to issue regulations and orders to any person (defined in-Section 11s to include, e.g., an individual, corporation, firm or a Federal, State 1
or local agency) who engages in conduct affecting activities within the Comission's subject-matter jurisdiction.
The few court cases that deal with the scope of the general authority Congress has granted the Comission usually oo so in l
the general discussion or in passing and conclude that Section 161 confers uniquely broad and flexible authority on the Comission.
See Power Reactor Dev. Co. v.
InternationalUnionofElec.RadioandMach. Workers.AFL-CIO,367U.S.396(1961);
Connecticut Light and 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 170,173-74 (1st Cir.1969); Siegel v. Atomic Energy Com'n, 400 F.2d 779, 783 (D.C. Cir.1968);
butef.Reynoldsv.UnitedStates,286F.2d433(9thCir.1960)(interpreting Section 1611 in detail and holding, in the context of the AEC's bomb testing b
l,
activities,thatSection1611(3)authorizedtheAECtotakeactiontogovernthe i
activities of private licensees and not the activities of the Comission itself; i
the court's use of the word " licensee" is dictum with regard to the term in the contextofthisnotice).
Cases analyzing the Federal Comunications Comission's (FCC) enabling statute, which, in many ways, is analogous to the Atcmic Energy Act, also support the 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 such rules and regulations, and issue such orders, not inconsistent with [the 1934 Act),
as may be necessary in the execution of its functions," 47 U.S.C.1541 (1982).
i This provision is similar to Section 1611(3) of the Atomic Energy Act of 1954, which authorizes the Counission to " prescribe such rules, regulations, and orders as it may deem necessary to govern any activity authorized pursuant to the [ Atomic
.1 EnergyActof1954)...inordertoprotecthealthandtominimizedangertolife orproperty....*42U.S.C.2201(1)(3)(1982).
A number of cases have analyzea Section 1541 in detail and held that the FCC's ordering authority is necessarily broad. -See 'rederal Comunications Comission v. National Citizens Comittee for Broadcasting, 436 U.S. 775 at 793 (1978); United States v. Storer Broadcasting Co.,351U.S.192at203(1955); National Broadcasting Co. v. United States, 319 U.S.190at196(1943); Lincoln Telephone and Telegraph Co. v. Federal Comunications Comission, 659 F.2d 1092 (D.C. Cir.1981); American Telephone and Telegraph v.
Federal Communications Commission, 487 F.2d 865 (2d Cir.1973); GTE Service Corp. v. Federal Comunications Comission, 474 F.2d 724 (2d Cir.1973); and Western Union Telegraph Co. v. United States, 267 F.2d 715, 722 (2nd Cir.1959).
It has been held that the FCC has authority to issue orders under Section 1541 to persons whether licensed or not.
United States v. Southwestern Cable, 392 U.S.157at180-81(1968).
+
Section 1611 provides broad authority to issue regulations 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 Comission to issue regulations to impose
- standards and instruc-l tions" on persons to govern the possession and_ use of special nuclear material, source material, and byproduct material, as may be necessary or desirable to provide' for the comon defense and security-and protect the public health and' safety.
Section 234 of the Atomic Energy Act authorizes the NRC to impose civil penalties on unlicensed individuals, inclu, ding those who conduct licensed activities as employees of licensees, for violation of the NRC's substantive requirements.
Section 234 reads as follows:
a.
Any person who (1) violates any licensing provision of section 53, 57, 62, 63, 81, 62, 101, 103, 104, 107, or 109 or any rule, regulation, or order issued thereunder, or any term, condition, or limitation of any license issued thereunder, or (2) commits any violation for which a license may be revoked under section 186 [of the 1954 Act), shall be subject to a civil penalty, to be imposed by the Comission, of not to exceed $100,000 for each such violation....
i The licensing provisions listed in Section 234a generally prohibit the possession, use, receipt, or transfer of nuclear materials er facilities unless authorized by a license.
The specific prohibitions are as follows:.Section 57, 63, and 81 prohibit persons from engaging in activities that may be licensed I
pursuant to Sections 53, 63, 81, and 82 unless those persons or their principals hold licenses that permit those activities.
Section 101 prohibits persons from engaging in activities regarding a production or utilization facility that the NRC licenses under Sections 103 or 104 unless those persons hold licenses that allow those activities. Section 101 further requires that persons licensed under Sections 103 or 104 conduct activities licensed pursuant to those sections in accordance with the licenses.
. The proposed changes are made under the. authority of 161b and i and the above-identified licensing provisions.
The proposed changes will prohibit willful misconduct that causes a licensee to be in violation of Comission requirements. -By imposing a direct prohibition on un'icensed persons, the Commission will.then be able to exercise its Section 234 authority to impose civil penalties on unlicensed individuals who willfully cause a licensee to be
-l in violation of requirements because they are persons who violate the-licensing provisions enumerated in section 234.
In cases where the Comission issues an-order (other than an order imposing a civil penalty) to a person based _on willful misconduct that causes a= licensee to be in violation of a Commission requirement or to a person whose willful misconduct, in the absence of-a violation, places in question the NRC's reasonable assurance that licensed l
activities will be conducted in a manner that provides adequate protection to the health and. safety of the public, the order would be issued, in part,-pursuant to a regulation (e.g., proposed $50.5) that was promulgated under a licensing provision of the Atomic Energy Act, and a civil penalty would be available for violations of such an order.
In addition criminal sanctions under Section 223 are available for willful violations of orders and regulations'under Section 161b and-1.
Injunctions are also available under Section 232 for violations of Commission orders.
l Environmental Impact: Categorical Exclusion The NRC has determined that this proposed rule relates to enforcement' matters and, therefore, falls within the scope of 10 CFR 51.10(d). Therefore, neither i
.an environmental impact statement nor an environmental assessment has been prepared for this proposed rule.
p. Paperwork Reduction Act Statement This proposed rule contains no information collection requirements'and therefore is not subject to the requirements of, the Paperwork Reduction Act of_
1980 (44 U.S.C. 3501 et seq.).
Regulatory Analysis
- The Nuclear' Regulatory Comission has, statutory authority to issue enforcement actions against unlicensed persons whose willful misconduct causes a-licensee to be in violation of the Commission's requirements or causes the NRC to. question its reasonable assurance that licensed activities will be conducted in'a-manner f
that provides adequate protection to public health and safety. As presently written, the Commission's regulations do not-specifically-implement thatL q
statutory authority and issuance of these orders.:.In-the past,--the' Commission has l
issued orders to holders of licenses directing removal of wrongdoers from licensed
. i j
i activities. However, this approach does not satisfy concerns about wrongdoers 'who i
may be hired by.others in the industry, without knowledge of the prior wrongdoing, i
or who are rehired by the former employer, in those instances where no order was
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issued.
The Comission is concerned about a number of incidents of-willful wrongdoing in recent years in which it has been limited in its ability' to address the problem directly or to have some contro'l over the activities of the wrongdoer in the near term. While the number of cases of willful misconduct of which the NRC is aware is not large, any number is unacceptable and the potential for injury is serious enough that the problem must be addressed.
I
1' l l The objective of the rule is to-put everyone subject to-the Comission's
' jurisdiction on notice that enforcement action, including civil penalties, might j
8 be taken against them for willful misconduct in relation to NRC licensed activities.
l Under section 234'of the Atomic Energy Act, the Comission may impose civil
. penalties on employees of licensees and others who willfully cause a violation of a requirement. The Comission also may impose a civil penalty on-a person who violates an order issued to that person for willful risconduct, absent a violation, that placed in question the NRC's reasonable assurance that licensed activities.will be conducted in a manner that provides adequate proter. tion to the public health and safety, because the order would be issued,.in part, pursuant ~
i a
to a regulation that was promulgated under a licensing provision of-the Atomic Energy Act.
The enforcement actions that are taken,- including orders limiting activities of wrongdoers in the future and civil penalties, will serve as a deterrent to others throughout the industry.
The alternatives available to the Commission are to propose a rule, as is done herein, or do nothing.
Given the frequency of these'. incidents, and the potential harm to the public as well as individuals working,in NRC liconsed activities, the alternative of doing nothing was rejected.
The benefits of taking enforcement
- i action are-similar to those of taking action against licensed entities, in that a civil penalty and attendant adverse publicity encourage future compliance, the Notice of Violation calls for precise response as to corrective action taken, and, an enforcement order, if obeyed, may directly control. the involvement of an individual in licensed activity. The effect of'having these options available in the enforcement program should reduce the probability of repetitive violations by wrongdoers.
The NRC does not anticipate that additional investigations will be necessary to implement the rule because it focuses on the results of investigations.
The
,l q
NRC estimates that fewer than five' cases per year will actually result in enforcement action being taken against unlicensed individuals.- The cost of preparing and publishing a very few additional actions per year beyond the current workload of handling of more than a hundred escalated enforcement actions per year is not significant.
The proposed rule will be implemented by processing, in the same manner as.
Other escalated enforcement actions, those cases of willful. misconduct,that come to-the agency's attention. ' The Commission will be consulted on actions that. involve:
i orders or civil penalties against unlicensed individuals. The Office'of Enforce-j ment will also maintain-a list of those enforcement orders applicable to.
individual wrongdoers and distribute, twice a year to'all power reactor licensees,
. I a copy of the list of currently effective orders that restrict; individuals'
{
1 i
from licensed activities and copies of those orders. Thefsame material will be
.t available to others who request it. The cost of distributing this-information is negligible.
In light of the benefits of enabling the'NRC to use its statutory authority to i
adoress directly the willful misconduct of unlicensed persons, it is appropriate that the Commission adopt the proposed rule.
Regulatory Flexibility Certification In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b),
the Commission certifies that this rule, if adopted, will not have a significant economicimpactonasubstantialnumberofsmall$ntities. The proposed rule-puts unlicensed persons on notice that they may be subject to enforcement action if they willfully cause a licensee to be in violation of Conmission requirements 1
1 f.
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. Y J.' 6 3
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- 5
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I
, or subject to an enforcement order if their willful misconduct places in question the NRC's reasonable assurance that licensed activities will be conducted in a manner adequate to protect the public health and safety. The proposed rule, by itself, does not impose any additional obligations on entities, including any regulated entities, that may fall within the definition of "small entities" as set forth-in section.601(3)-of the Regulatory Flexibility Act, or within the definition of "small business" as found in section 3 of the Small Business.Act, 15 U.S.C. 632, or within the size standards adopted by the NRC (50 FR~50241;.
December 29.1985). Obligations would not,be created until an order is issued, j
at which time the person subject to the order would have a right to a hearing in accordance with the regulations.
Backfit Analysis i
This proposed rule does not involve any new provisions that would impose l
1 backfits as defined in 10 CFR 50.109(a)(1). Accordingly, 'a backfit analysis I
.i pursuant to 10 CFR 50.109(c) is not required for this proposed rule. However, issuance of orders pursuant to this regulation may involve-backfit considerations.
l which will be addressed on a case-by-case basis.
I List of Subjects
]
10 CFR Part 30 - Byproduct material, Government contracts, Intergovernmental relations, Isotopes, Nuclear materials, Penalty, Radiation protection, Reporting and recordkeeping requirements.
i 1
l
4 -
10 CFR Part 40 - Government contracts,. Hazardous materials - transportation, Nuclear materials, Penalty Reporting and recordkeeping requirements, Source
[
material, Uranium.
10 CFR Part 50;- Antitrust, Classified information, Fire protection, Incorporation by reference,~ Intergovernmental relations, Nuclear power plants and reactors, Penalty, Radiation protection, Reactor siting criteria.
Reporting and recordkeeping requirements.
10 CFR Part 60 - High-level waste, Nuclear power plants and reactors, Nuclear materials, Penalty, Reporting and recordkeeping requirements, Waste treatment I
and disposal._
10 CFR Part 61 - Low-level waste,_ Nuclear materials, Penalty, Reporting and recordkeeping recuirements, Waste treatment and disposal, f
10 CFR Part 70 - Hazardous materials - transportation, Material _ control and
-l accounting, Nuclear materials, Packaging and containers, Penalty, Radiation i
protection, Reporting and recordkeeping requirements, Scientific equipment,.
Security measures, Special nuclear material.
10 CFR Part 72 - Manpower training programs, Nuclear materials, Occupational safety and health, Reporting and recordkeeping requirements, Security measures, a
Spent fuel.
i 10 CFR Part 110 - Administrative practice and procedure, Classified' information, Export,< laiport, Incorporation by reference. Intergovernmental relations, Nuclear materials, Nuclear power plants and reactors, Penalty, q
Reporting and recordkeeping requirements, Scientific equipment 10 CFR Part 150 - Hazardous-materials - transportation -Intergovernmental relations, Nuclear materials, Penalty, Reporting and recordkeeping requirements, Security measures Source material,~ Special nuclear material, q
For the reasons set out in the preamble and un' der the authority of the j
Atomic Energy Act of 1954, as amended, the. Energy Reorganization Act of 1974,.
j as amended, and.5 U.S.C. 553, the NRC is proposing to adopt the following j
amendments to 10 CFR Parts 30,_40, 50, 60, 61, 70, 72_and 150.
l i
PART 30 - RULES OF GENERAL APPLICABILITY TO DOMESTIC LICENSING 0F BYPRODUCT MATERIAL i
i 1.
The authority citation for Part 30 is revised to' read'as follows:
1 AUTHORITY: Secs. 81, 82, 161, 182, 183, 186, 68 Stat. 935, 948, 953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2111, 2112, 2201,2232,2233,2236,2282); secs.201,as' amended, 202, 206, 88 Stat. 1242, as amended, 1244,1246(42U.S.C.5841,5842,5846).
Section 30.7 also issued under Pub. L.95-601, sec. 10, 92 Stat. 2951 i
(42 U.S.C. 5851). Section 30.34(b) also issued under sec.184, 68 Stat,, 954,.
as amended (42 U.S.C. 2234). Section 30.61 also issued under sec. 187, 68 Stat.
955(42U.S.C.2237).
For the purposes of sec. 223, 68 Stat. 958, as amendec (M. U.S.C. 2273);
9630.3, 30.10, 30.34(b), (c) and (f), 30.41(a) and (c), and 30.53 are issued undersec.161b,68 Stat.948,asamended(42U.S.C.2201(b));.630.10isissued i
s.
under sec. 1611, 68 Stat; 949,. as amended (42 U.S.C. 2201(i)); and il30.6, 30.9, 30.36,30.51,30.52,30.55,and30.56(b)and(c)=areissuedundersec.1610, 68 Stat.950,asamended(42U.S.C.2201(o)).
- 2. -Section 30.1 is revised to read as follows:
l 30.1 Scope.;
This part prescribes rules applicable _to all persons 'in-the-United States
~
l governing domestic licensing of byproduct material under the Atomic Energy Act -
'i of 1954, as amended (68. Stat. 919), and under Title-II of the Energy Reorganization
]
Act of 1974 (88 Stat. 1242), and exemptions from the domestic licensing require-ments permitted by section 81'of-the Act. This part also gives notice, in 630.10, to all persons whose actions enable.a licensee to carry.out activities licensed by the Commission, including Individuals, corporations, and other entities, whether or not licensed by-the NRC, that they may be individually subject to NRC enforce-ment action for willful misconduct that causes a, licensee to be in violation of 1
i an NRC requirement or that places in' question reasonable assurance of adequate protection of the public health and safety.
3.
Immediately following i 30.9, a new i 30.10 is added to read.as followsi i 30.10 Willful misconduct.
4 A person may not willfully cause a licensee to be in violation of any rule, regulation, or order, or any term, condition, or limitation, of.any license-issued by the Comission. A person who violates this provision may be subject to enforcement action in accordance with the procedures in 10 CFR Part 2, Sub-part B.
In addition, the Commission may issue an enforcement order pursuant to 10 CFR Part 2, Subpart B, to address willful misconduct of persons that arises I
1
- 25'-
out of activities within the' jurisdiction of the NRC and places in question the l
.NRC's reasonable assurance that licensed activities will be conducted in a manner that provides adequate protection to the health'and safety of the public.
PART 40 - DOMESTIC LICENSING OF SOURCE MATERIAL 4.
The authority citation for Part.40 is revised to read.as'follows:
AUTHORITY: Secs. 62, 63, 64, 65, 81, 161, 182, 183, 186, 68 Stat. 932, 933, t
935, 948, 953, 954, 955, as amended, secs. 11e(2), 83, 84, Pub. L.95-604, 92 Stat.3033,asamended,3039,sec.234,83 Stat.444,asamended(42U.S.C.
2014(e)(2),2092,2093,2094,2095,2111,2113,2114,2201,2232,2233,-2236,
~
2282); sec. 274, Pub. L.66-373, 73 Stat. 688 (42 U.S.C. 2021); secs. 201, as-amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841,.5842, 5846); sec. 275, 92 Stat. 3021, as amended by Pub. L.97-415, 96 Stat. 2067 (42 i
U.S.C.2022).
Section 40.7 also issued under Pub. ' L.95-601, sec.10, 92' Stat. 2951- (42 l
-U.S.C. 5051). Section 40.31(g) also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 40.46 also issued under sec. 184, 68' Stat. 954, as amended (42 U.S.C. 2234). Section 40.71 also issued under sec. -187,- 68 Stat. 955 (42 l U.S.C.2237).
For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. ?273);
6940.3,40.10,40.25(d)(1)-(3),40.35(a)-(d)and(f),40.41(b)and(c),40.46, 40.51(a) and (c), and 40.63 are issued under sec.161b, 68 Stat. 948i as amended
~
(42U.S.C.2201(b));540.10isissuedundersec. 1611, 68 Stat. 949, as amended (42 U.S.C. 2201 (i)); and 5640.5, 40.9, 40.25(c), (d)(3), and (4), 40.26(c)(2),
[
40.35(e), 40.42, 40.61, 40.62, 40.64, and 40.65 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
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- 26'-
5.
Section 40.2 is revised to read as follows:
6 40.2 Scope.
Except as provided in 5640.11 to 40.14 of this. par't,' inclusive, the-regulations in this part' apply to a11' persons in the United States. This part:
-also~gives notice, in 640.10,.to all persons whose actions enable a licensee to carry out activities licensed by the Commission, including individuals, l
corporations, and other entities;-whether;or not licensed by the NRC, that they-q may be individually subject to NRC enforcement action for willful misconduct that causes a-licensee to be in violation 9f an NRC requirement or that places-in~ question reasonable assurance of adequate protection of.-the-public health and safety.
- 6. Immediately following 6 40.9, a new $ 40.10 is added to read as follows:
i 40.10 Willful misconduct.
1 A person may not willfully cause a licensee to be in violation.of any rule, regulation, or order, or any term, condition, or limitation, of any license issued by the Commission. A person who violates this provision may be subject to enforcement action in accordance with the procedures in 10 CFR Part 2, Sub-part B.
In addition, the Commission may issue an enforcement order pursuant
{
i to 10 CFR Par; 2, Subpart B, to address willful misconduct of persons that arises out of activities within the jurisdiction of the NRC and places.in question the NRC's reasonable assurance that licensed activities will be conducted in a manner that provides adequate protection to the health and safety of the public.
i J
PART 50 - DOMESTIC LICENSING 0F PRODUCTION AND UTILIZATION FACILITIES 7.
The authority citation for Part 50 is revised to read as follows:
l i
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e..,
d AUTHORITY: Secs. 102, 103, 104,;105, 161, 182, 183, 186, 189, 68 Stat. 936, 937, 938, 948, 953, 954,_955, 956, as amended, sec. 234,- 83 Stat.1244, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201, 2232, 2233, 2235, 2239 2282);
1 secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244,1246(42 U.S.C. 5841, 5842, 5846).
Section 50.7 also issued under Pub. L.95-601, sec.10, 92 Stat. 2951 (42 a!
U.S.C. 5851). Section 50.10 also issued under secs. 101, 185, 68 Stat. 936, 955, as amended (42 U.S.C. 2131, 2235); sec. 102, Pub. L.-91-190, 83 Stat. 853 (42 U.S.C.4332). Sections 50.13and50.54(dd),alsoissuedundersec.108,68 Stat.
939,asamended(42U.S.C.2138).
Sections 50.23, 50.35, 50.55, and 50.56 also 4
issued under sec.185, 68 Stat. 955 (42-U.S.C. 2235). Sections 50.33a, 50.55a and Appendix Q also issued under sec. 102, Pub. L.91-190, 83 Stat. 853 (42
'U.S.C. 4332). Sections 50.34 and 50.54 also issued under sec. 204, 88 Stat.1245 (42 U.S.C. 5844). Sections 50.58, 50.91, and 50.92 also issued under Pub. L.-
97-415, 96 Stat. 2073 (42 U.S.C. 2239). Section 50.78 alsoEissued under sec.
4 122, 68 Stat. 939 (42.U.S.C. 2152). Sections.50.80 through 50.81 also issued-under sec. 184, 68 Stat. 954,.as amended (42 U.S.C. 2234). Section.50.103 also issued under sec. 108, 68 Stat. 939, as amended (42 U.S.C.:2138). Appendix F also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).
Forpurposesofsec.223,68 Stat.958,asamended(42U.S.C.2273);9650.5, 50.46(a) and (b), and 50.54(c) are issued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b)); 1550.5, 50.7(a), 50.10(a)-(c), 50.34(a) and (e),
50.44(a)-(c),50.46(a)and(b),50.47(b),50.48(a),(c),(d),and(e),50.49(a),
50.54(a), (1), (1)(1), (1)-(n), (p), (q), (t), (v), and (y), 50.55(f), 50.55a(a),
(c)-(e), (g),.and (h), 50.59(c), 50.60(a), 50.62(c), 50.64(b), and 50.80(a) and (b) are issued under sec. 161i, 68 Stat. 949, as amended (42 U.S.C. 2201(i));
and$$50.49(d),(h),and(J),50.54(w),(z),(bb),(cc),and(dd),50.55(e),
l l
'n.;
I s
'l
'28 -
50.59(b),50.61(b),50.62(b),50.70(a).50.71(a)-(c)and(e),,50.72(a),50.73(a).
and (b), 50.74. 50.78, and 50.90 are issued'under sec. 1610, 68 Stat. 950, as 1
amended (42U.S.C.2201(o)).
8.
Section-50.1 is revised to read:as follows:
5 50.1. Basis, purpose, and procedures applicable.
The regulations in-this part are promulgated by the Nuclear Regulatory Commission pursuant to the Atomic Energy Act of 1954,' as amended (68 Stat.1919),
and Title II of the Energy Reorganization Act of 1974 (88 Stat.'1242)--to provide I
for the licensing of' production and utilization facilities. This part also.gives'-
notice, in 650.5, to all persons whose. actions enable a-licensee to carry out activities licensed by_ the Conmission,-including individuals,_ corporations, and l
other entities, whether or not licensed by'the NRC under-~oth'er parts of this l
l chapter, that they may be individually subject to NRC-enforcement action for willful misconduct tnat causes a licensee-to be in violation of an l!RC require--
l l-ment or that places in question reasonable assurance of adequate protection of the public health and safety.
- 9. Immediately following 9 50.4, a new l 50.5 is added to read as follows:
- % 50.5 Willful misconduct.
1 A person may not willfully cause a licensee to be in violation of any rule, regulation, or order, or any term, condition, or limitation, of any license issued by the Connission. A person who violates this provision may be subject to enforcement action in accordance with the procedures in 10 CFR Part 2, Sub-part B.
In addition, the Commission may issue an enforcement order pursuant i
to 10 CFR Part 2, Subpart D, to address willful misconduct of persons that arises i
out of activities within the jurisdiction of tho itRC and places in question ~the f
=..,
l NRC's reasonable assurance that licensed activities will be. conducted in a manner that provides adequate protection to the health'and safety;of the public.
PART 60 - DISPOSAL OF HIGH-LEVEL RADI0 ACTIVE WASTES IN GEOLOGIC REPOSITORIES 10.
The authority citation for Part' 60 is revised to read as follows:
AUTHORITY: Secs. 51, 53, 62, 63, 65, 81,.161, 182, 183, 68 Stat.-929, 930, 932, 933, 935, 948, 953, 954, asamended(42U.S.C.2071,2073,2092,2093,.
2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88 Stat. 1244, 1246 (42 U.S.C.
-5842, 5846); secs. 10 and 14,-Pub. L.95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5851);- sec. 102, Pub. L.91-190, 83 Stat. 853-(42 U.S.C. 4332); secs 114, 121, Pub. L.97-425, 96 Stat. 2213, 2228 asamended(42U.S.C.10134,10141).-
For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C.-'2273);
$60,11 is issued under sec.161b, 68' Stat. 948, as amended (42 U.S.C. 2201(b));
$60.11 is issued under sec. 161i, 68 Stat. 949, as amended (42 U'.S.C. 2201(i));
'I and ll 60,10, 60.71 to 60.75 are issued under sec.'1610, 68 Stat. 950, as amended (42U.S.C.2201(o)).
- 11. Section 60.1 is revised to read as follows:
6 60.1 Purpose and scope.
i This p6rt prescribes rules governig the licensing of the U.S. Department of Energy to receive and possess source, special nuclear, and byproduct material at a 9eologic repository operations' area sited, constructed, or operated in accoroance with the Nuclear Waste Policy Act of 1982. This part does not apply
q l
. 30 - -
~
to any activity licensed under another 'part of this chapter. This' part also givt.s notice, in 660.11, to all persons whose actions enable a licensee to. carry out activities licensed by the Comission, including individuals, corporations, and other entities, whether or not licensed by the NRC, that they may be in-dividually subject to NRC enforcement action for willful misconduct'that causes a licensee to be in violation of an NRC requirement or that places in question-
~
y i
reasonable assurance.of adequate' protection of_the public health and safety.
j
- 12. Imediately following i 60.10, a new I _60.11 is added to read as follows:-
(~60.11 Willful misconduct.
.i
-il A person may not willfully cause a licensee to be in violation of any rule, regulation, or order, or.any term, condition, or limitation,- of any license.
issued by the Comission. A person _who violates this' provision may be subject j
l to enforcement action in accordance with the procedures in 10 CFR Part 2, Sub-part B.
In addition, the Comission may issue an enforcement order pursuant-to.
i 10 CFR Part 2, Subpart B, to address willful misconduct of pers'ons that arises i
out of activities within the jurisdiction of the NRC and places.in question the NRC's reasonable assurance that licensed activities will be: conducted in a manner t
that provides adequate protection to the health and safety of-the public.
PART 61 - LICENSING REQUIREMENTS FOR LAND DISPOSAL OF RADI0 ACTIVE WASTE
- 13. The authority citation for Part 61 is revised to read as follows:
AUTHORITY: Secs. 53, 57, 62, 63, 65, 81, 161, 182, 183, 68 Stat. 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2073, 2077, 2092, 2093, E095, 2111, 1
,]
~
p 2201, 2232, 2233); secs. 202, 206,- 88 Stat.1244,1246, (42 U.S.C. 5842, 5846);
secs. 10 and 14, Pub. L.95-601,-92 Stat. 2951 (42 U.S'C. 2021a and 5851).
For the purposes of-Sec. 223, 68 Stat. 958, as amended, (42 U.S.C. 2273);
Tables 1 and 2, M 61.3 61.9b, 61.24, 61.25, 61.27(a), 61.41 through 61.43,:
61.52, 61.53, 61.55, 61.56, and 61.61 through 61.63 are issued under sec.161b, 68 Stat. 948, as amended-(42 U.S.C. 2201(b)); 661.9b is issued under'sec.1611, 68 Stat. 949, as amended.(42 U.S.C. 2201(1)); 61.9a, 61.10 through 61.16, 61.24, and 61.80 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
14.
In i 61.1, paragraph (c). is added to read'as follows:
$ 6
1.1 Purpose and Scope
l s
s s-w i
(c) This part also gives notice, in-661.9b, to all persons whose actions-enable a ' licensee to carry out activities licensed by the Commission, including
]
individuals, corporations, and other entities, whether or not licensed by the 1
NRC, that they may be individually subject to NRC enforcement action for willful misconduct that causes a licensee to be in violation of an NRC requirement-or h
that places in question reasonable assurance of adequate protection of the public health and safety, i
o 15.
Immediately following 661.9a; a new 661.9b is added to read as follows:
l 6 61.9b Willful misconduct.
A person may not willfully cause a -licensee to be in violation of any rule, I
regulation, or order, or any term, condition, or limitation, of any license l
u..-,
. 32..
issued by the Commission. A person who_ violates this provision may be subject to enforcement _ action in accordance with the procedures in 10 CFR Part 2, Sub-part B.
In addition, the Cornission may issue an enforcement order pursuant to 10 CFR Part 2,.Subpart 8, to address willful _ misconduct of persons that arises out of activities within the jurisdiction of the NRC and places in question the NRC's reasonable assurance that licensed activities will be conducted in a manner that provides adequate protection to the health and safety of, the' public.
l PART 70 - DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL 4
16.
The authority citation for Part 70 is revised to read as:follows:
AUTHORITY:' Secs. 51, 53, 161, 182, 183, 68 Stat. 929, 930, 948, 953, 954, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C.'2071, 2073, 2201, 2232, 2233, 2282); secs. 201, as amended, 202, 204, 206. 88 Stat. 1242,.as amended, 1244, 1245, 1246 (42 U.S.C. 5041,-5842, 5845, 5846).
i Sections 70.1(c) and 70.20a(b) also issued under secs. 135, 141, Pub
_L.-
s97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 70.7 also issued q
under Pub. L.95-601, sec.10, 92 Stat. 2951 (42 U.S.C. 5851). Section 70.21(g) l clso issued under sec.122, 68 Stat. 939 (42 U.S.C. 2152). Section 70.31 also a
issued under sec. 57d, Pub. L.93-377, 88 Stat. 475 (42 U.S.C. 2077). Sections 70.36 and 70.44 also issued under sec.184, 68 Stat. 954, as amended (42 U.S.C.
2234). Section 70.61 also issued under secs. 186, 187, 68 Stat. 955~(42 U.S.C.
2236,2237). Section 70.62 also issued under sec.108, 68 Stat. 939, as amended (42 U.S.C. 2138).
For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C.-2273);
$$70.3, 70.10, 70.19(c), 70.21(c), 70.22(a), (b), (d)-(k), 70.24(a) and (b),
l
33 -
70.32(a)(3), (5), (6), (d), and (1), 70.36, 70.39(b) and (c), 70.41(a)', 70.42(a) and (c), 70.56, 70.57(b), (c), and (d), 70.58(a)-(g)(3), and (h)-(j) are issued i
under sec. -161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b)); 6670.7, 70.10, 1
70.20a(a) and (d), 70.20b(c) and (e), 70.21(c), 70.24(b),-70.32(a)(6), (c), (d),
(e),and(g),70.36,.70.51(c)-(g),70.56,70.57(b)and(d),and-70.58(a)-(g)(3) j and(h)-(j)areissuedundersec. 1611, 68 Stat. 949, as amended (42 U.S.C.
2201(1));and6670.5,70.9,70.20b(d)and(e), 70.38,70.51(b)and-(i),70.52,.
L 70.53, 70.54, 70.55, 70.58(g)(4), (k), and (1), 70.59, and 70.60(b) and ('c) are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
17.
Section 70.2 is revised to read as follows:
5 70.2 Scope.-
Except as provided in 65 70.11 to 70.13, inclusive, the regulations in this i
part apply to. all persons in the United States.
This part also gives notice,.in 670.10, to all persons whose actions enable a licensee to carry out activities -
licensed by the Commission, including indiviouals, corporations, and other entities, whether or not licensed by the NRC, that they may be individually subject to NRC cnforcement action for willful misconduct that causes a licensee
-I to be in violation of an NRC requirement or that places in question reasonable assurance of adequate protection of the public health and safety.
- 18. Immediately following i 70.9, a new 6 70.10 is added to read as follows:
5 70.10 Willful misconduct.
A person may not willfully cause a licensee to be in violation of any rule, regulation, or order, or any term, condition, or limitation, of any license
-....-....,,-ni-
- i...
. i a
i
~
, issued by the Connission. A person who violates this provision may be subject to enforcement action in accordance with the procedures in 10 CFR Part 2,-Sub-part B.
In addition, the Consission may issue an enforcement order pursuant to
-10 CFR Part 2, Subpart B, to address willful misconduct of-persons-that arises out-of activities within the jurisdiction of the NRC and places in question the-j NRC's reasonable assurance that licensed activities will be conducted in a manner i
that provides adequate protection to the health and safety of the-public..
-PART 72 - LICENS1HG REQUIREMENTS FOR THE INDEPENDENT STORAGE OF SPENT NUCLEAR-i FUEL AND HIGH-LEVEL RADI0 ACTIVE WASTE
'l
- 19. The authority citation for Part 72 is revised to read as follows:
}
Jl AUTHORITY: Secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182,'183, 184, 186, 187,189, 68 Stat. 929, 530, 932, 933, 934, 935, 948, 953, 954, 955, -as amended, -
sec. 234, 83 Stat. 444, as amended (42 U.3'.C. 207*, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233, 2234, 2236, 2237 2238, 2282); sec. 274, Pub. L.86-373, 73 Stat. 688, as amended (42 U.S.C. 2021); sec. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244,1246(42U.S.C.5841,5842,5846);
Pub. L.95-601, sec.10, 92 Stat. 2951 (42 U.S.C. 5851); sec.102, Pub. L.-
91-190,83 Stat.853(42U.S.C.4332); Secs.131,132,133.-135,137,141, Pub.
L.97-425, 96 Stat. 2229, 2230, 2232, 2241, sec.148, Pub. L.100-203,101 Stat.
1330-235 (42 U.S.C. 10151, 10152, 10153, 10155, 10157, 10161, 10168).
Section72.44(g)alsoissuedundersecs.142(b)and148(c),(d), Pub.L.
100-203,101 Stat.1330-232,1330-236 (42 U.S.C.10162(b),10168(c), (d)).
i Section 72.46 also issued under sec.189, 68 Stat. 955 (42 U.S.C. 2239); sec.
I s-4 134, Pub. L.97-425, 96 Stat. 2230 (42 U.S.C. 10154). Section 72.96(d) also
-l issued under sec.145(g), Pub, L.- 100-203,101 Stat.1330-235 (42 U.S.C.
l 10165(g)). Subpart J also issued under secs. 2(2) 2(15), 2(19)', 117(a),
j r
141(h), Pub..L.97-425, 96 Stat' 2202, 2203, 2204, 2222, 2224 (42 U.S.C. 10101, 10137(a),10161(h)).
Forthe.purposesofsec.223,68 Stat.958,asamended(42U.S.C.2273);
il72.6,72.12,72.22,72.24,72.26,.72.28(d),72.30,72.32,72.44(a),-(b)(1),
(4), (5), (c), (d)(1), (2), (e), (f), 72.48(a), 72.50(a), 72.52(b),772.72(b),
(c),72.74(a),(b),72.76,72.78,72.104,72.106,72.120,72.122,72.124,72.126,-
72.128, 72.130, 72.140(b), (c), 72.148, 72.154, 72.156, 72.160, 72.166, 72.168, 72.170, 72.172, 72.176, 72.180, 72.184, 72.186 are issued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b));-il72.10(a), (e), 72.12' 72.22, 72.24, 72.26,72.28,72.30.-72.32,72.44(a),(b)(1),(4),(5),(c),(d)(1),_(2),(e),
(f), 72.48 (a), 72.50(a), 72.52(b), 72.90(a)-(d),- 72.92,- 72.94, 72.98, 72.100, 72.102(c), (d), (f), 72.104, 72.106, 72.120, 72.122, 72.124, 72.126, 72.128, 72.130,72.140(b),(c),72.142,72.144,72.146,72.148,72.150,-72.152,72.154, 72.156, 72.158, 72.160, 72.162, 72.164, 72.166, 72.168, 72.170, 72.172, 72.176, 72.180, 72.182, 72.184, 72.186, 72.190, 72.192, 72.194 are issued under sec. 1611, 68. Stat. 949, as amended (42 U.S.C. 2201(i)); and il72.10(e), 72.11, 72.16,72.22,72.24,72.26,72.28,72.30,72.32,72.44(b)(3),(c)(5),(d)(3),
(e),(f),72.48(b),(c),72.50(b),72.54(a),(b),(c),72.56,:72.70,'72.72, 72.74(a),(b),72.76(a),72.78(a),72.80,72.82,72.92(b),72.94(b),72.140(b),
(c),(d),72.144(a),72.146,72.148,72.150,72.152,72.154(a),(b),72.156, 72.160, 72.162, 72.168, 72.170, 72.172, 72.174, 72.176, 72.180, 72.184, 72.186, 72.192 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
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.36 -
20.
Ini72.2, paragraph (f).isaddedtoreadasfollows:
i 72.2 Scope.
e (f)Thispartalsogivesnotice,in672.12,toallpersonswhoseactions enable a licensee to' carry out activities licensed by the Commission, including individuals, corporations,.and other entities, whether or not licensed by the NRC, that they may be individually subject to NRC enforcement action' for willful misconduct that causes a licensee to be-in violation of an NRC requirement or.
that places in question reasonable assurance of adequate protection of the public health and safety.
- 21. Immediately following i 72.11 a new i 72.12 is added to read as follows:
-5 72.12 Willful raisconduct.
1 A person may not willfully cause a licensee to be in violation of-any rule, regulation, or order, or any term, condition, or limitation, of any license issued by the Commission. A person who violates this provision may be subject to enforcement action in accordance with the procedures-in 10' CFR Part 2. Sub-part B.
In addition, the Commission may issue an enforcement order pursuant-to 10 CFR Part 2, Subpart B, to address willful misconduct of pert,cns that arises out of activities within the jurisdiction of the NRC and places in question the NRC's reasonable assurance that licensed activities will be conducted in a manner that provides adequate protection to the. health and safety of the public.
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.. PAP,T 110 - EXPORT AND IMPORT OF NUCLEAR EQUIPMENT AND MATERIAL
- 22. The authority citation for Part 110 is revised to read as follows:
I AUTHORITY: becs. 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, 2154-2158,_2201, 2231-2233,2237,2239);sec.201,88 Stat.,1242,asamended(42U.S.C.5841).
Section 110.1(b)(2) also' issued under Pub. -L. 96-92, 93 Stat.-710 (22U.S.C.2403). Section 110.11.also issued under sec.-122, 68 Stat. 939 (42U.S.C.2152)andsecs.54cand57d.,88 Stat.473,'475(42U.S.C.2074).
Section110.27alsoissuedundersec.309(a), Pub.L.99-440._ Section j
110.50(b)(3)alsoissuedundersec.-123,92 Stat.142(42U.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).
i Sections 110.80-110.113 also issued under 5 U.S.C. 552, 554.
Sections 110-30-110.35 also issued under 5 U.S.C. 553.
For the purposes of sec. 223, 68 Stat. 958, as amended (42'U.S.C. 2273);
56110.20-110.29, 110.50, and 110.120-110.129 also issued under secs. 161b.and 1, 68 Stat. 948, 949, asamended(42U.S.C.2201(b)and(i));6110.7bisissued under sec 1611,68 Stat.949,asamended(42U.S.C.2201(i));andill10.7t.,
110.53 also issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
s
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38 -.
23.
In i 110.1, paragraph (a) is revised to read as follows:.
j i 110.1 Purpose and scope.
(a) The regulations in this part prescribe licensing, enforcement, and rulemaking procedures:and criteria, under the Atomic Energy Act, for the export of nuclear equipment and material, as set out in i 110.8, and the innport of nuclear equipment and material, as set out in 9110.9. This part also'gives 1
notice, in 6110.7b,' to all persons whose actions enable a licensee to carry out I
activities licensed by the Commission, including individuals, corporations, and l
other entities, whether or not licensed by the NRC, that they may be individually subject to NRC enforcement action for willful misconduct that causes a licenseelto be in violation of an NRC requirement or that places in question reason 6ble assurance of adequate protection of the public health and safety.
24.
Immediately following 5110.7a, a new 5110.7b is added.to read as follows:
5 110.7b Willful misconduct.
i A person may not willfully cause a licensee to be in violation of any rule, regulation, or order, or any term, condition, or limitation, of any license.
issued by the Commission.
A person who violates this provision may be subject to enforcement action in accordance with the procedures in 10 CFR Part 2, Sub-part B.
In addition, the Commission may issue an enforcement order pursuant
.., -. to 10 CFR Part 2, Subpart B,.to address willfu1= misconduct of persons that arises out of activities within the, jurisdiction of the NRC and places in question the NRC's reasonable' assurance that licensed activities will be conducted in a raanner that provides adequate. protection to the health and safety of the public.
PART 150 - EXEMPTIONS AND CONTlHUED REGULATORY AUTHORITY IN AGREEMENT STATES AND IN OFFSHORE' WATERS UNDER SECTION 274
- 25. The authority citation for Part,150 continues to read as follows:
AUTHORITY: Sec.161, 68 Stat. 948, as amended, sec. 274, 73 Stat. 688 (42 U.S.C. 2201, 2021); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841).
Sections 150.3, 150.15, 150.15a, 150.31,.150.32 also issued under secs.
11e(2), 81, 68 Stat. 923, 935, as amended, secs. 63,84,92 Stat.3033,3039-(42 U.S.C. 2014e(2), 2111, 2113, 2114). Section 150.14 also issued under sec. 53, 66 i
Stat. 930, as amended (42 U.S.C. 2073). Section-150.15 also issued under secs.
l 135,141, Pub. L.97-425, 96 Stat. 2232, 2241' (42 U.S.C.10155,- 10161).. Section 150.17a also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 150.30 also issued under sec. 234, 83 Stat. 444-(42 U.S.C.' 2282).
For the purposes of sec. 223, 68 Stat. 958, as ahnended (42 U.S.C. 2273);
$5150.20(b)(2)-(5) and 150.21 are issued under sec.161b, 68 Stat. 948, as amended (42U.S.C.2201(b));55150.14and150.20(b)(5)areissuedundersec.1611, 68 Stat. 949, as amended (42 U.S.C. 2201(i)); and 65150.16-150.19 and 150.20(b)~
(1)areissuedundersec. 1610,68 Stat.950,asamended(42U.S.C.2201(o)).
I I
..e 26.
.Section 150.2 is revised to read as follows:-
i 150.2 Scope.
The regulations in this part apply to all States that have entered into agreements with the Comission or the Atomic Energy Comission pursuant to-subsection 274b of the Act. This-part also gives notice, in.6150.20b(5), to all' persons'whose actions enable a. licensee to carry out activities licensed by the Comission, including individuals, corporations, and other entities whether.or not licensed by the NRC, that they may be individu' ally subject to.NRC enforcement action for willful misconduct that causes a licensee to be in violation of an NRC requirement or that places in question reasonable assurance of adequate i
protection of the public health and safety.
27.
In 5150.20, paragraph (b)(5) is added to read as follows':
l
.-l i
i 150.20 Recognition of Agreement State licensees.
l (b)
(5) May not willfully cause a licensee to be in violation of-any rule, regulation, or order, or any term, condition, or limitation, of any license issued by the Commission. A person who violates this provision may be subject to enforcement action in accordance with the procedures in 10 CFR Part 2, Sub-1
i-
=..
part B.
In addition, the Cor.raission may issue an enforcement order pursuant to 10 CFR Part 2, Subpart B, to address willful misconduct of persons that q
arises out of' activities within the jurisdiction of the NRC and places in question the NRC's reasonable assurance that licensed activities will be j
conducted in a manner that provides adequate protection to'the health and safety of the public.
e e
Dated at Rockville, MD, this 28th day of-March,1990.
'k For the Nuclear Regulatory Comission.
k~
I SYmuel4.Chilk,.
~
v i
Secretary of the Coninission.
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