ML20043C566
| ML20043C566 | |
| Person / Time | |
|---|---|
| Issue date: | 04/11/1990 |
| From: | Grimsley D NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | Felton J NUCLEAR LICENSING REPORTS |
| References | |
| FOIA-89-546 NUDOCS 9006050330 | |
| Download: ML20043C566 (4) | |
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INFORMATION ACT (FOIA) REQUEST V'
Apg3y g ee' wam,e -es.e, as ovisitis Joseph M. Felton PART l.- AGtNCY RICORDS Ritt A$tD OR NOT LOCATED ISee checied tienes)
No opency ruo se evt. pct to tw roo est here toe noceied too addatest egency vocorde svt>,ect to the toovest have top located Roguestod setords are eveilable through e' ether pvMC d4tritivt.on proy'em See Commets Section Agersey reco*ds sub,0ct to the 8eovest thol s'e 8dentd'96 on Append ales) are el<eedt stelittele fo# put4 it spection ed copymg e P4 NRC Put4 Document Room tito L Stent N W. Wuhengton DC 20566 y
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PART g. A-INFORMATION WITHHILD FROM PUBLIC DISCLOSURE Certain eto, met.on m tN eeowesied 'no'es 4 tems *ohuid from pot 4 e4cic ssee ov's ei to the e empt.rees sew < tees e ed toe the eenons time n Peri e nctions D menis for *Ncb oni, pe,1 of 19 <eco's 4 t4ing *ahheid ere t4ir.g mise e.aoeb+e foi potmc.rSpeci.on no copyme e. C. e4 0 Anv reienee port.ons of tu occuite NRC Pvt +c Document Roor't it 70 t St'oet. N W. Wuhmeton. DC m e 'oioe* w de X
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FREEDOM'OF INFORMATION ACT RESPONSE FOiA NuMatRstst F OIA 546 DAtten,, m L
PART 11.0- APPLICADLE EXEMPTIONS
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Records sutyect t; the reavest that are dest.fibed ;n the Cnclosed Appendels) _Q__so being mthheld m their cntit;ty or en part under the (semptiot s and for the reasons set forth below pursuant to 5 U.S C. bb21bl and 10 CFR P Man of fWRC Reguistions.
- 1. The withheld information as properly (lassified pursuant to tsecutive Order if xtMPTION 11
- 2. The withheld information relates solely to the internal pertorinel rules and procedures of NRC. It AEMPTION h
- 3. The withheld mformation is specifically enempted from public disclosure by statute endicated (EXIMPTION 31
$ections 14114$ of the Atomic trergy Act wh6ch prohibits the disclosure of Aestncted Data et f orme'ly hestr6cted Data 142 U $ C. 2161-21661 Section 147 of,,3 Atomic Energy Act which prohibits the esclosure of Unclassified $ateguares information (4218 5 C. 2107L
- 4. The withheld 6nformation is a trade secret or commercial or firaancial information that is tiemp wrthheld for the 'essantsiindicated itKtMPTION el The enformation is considered to be conhdential busmess (propretary) mformation The enformation es considered to te pioproelery 6nformation pursuant to 10 CFR 2 790tditit The information was submitted and recoved m conhdence pursuant to 10 CFR 2 790idH2) y
- 6. The withheld enformation tonsists of mteragency or mtraspency records that are not evavable through decovery du ing litigation ttatMPTION 61 Apphcable Privilege r
beliberative Process: Disclosure of prerecisso.est information would tend to mhetut the open and frans enchange of idees essentist to the delli%r'et'ive process.
"o"rteons'be8's'ethe release of the'a'""s wosild permit e"n mdirec't movity into the predecisional process of the agenc'y. '' "* "**"a'b'v 9'8'b* '"*'
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cau fact Attorney work product privilege (Documents Depared t y an attornet en contemptation of ist pation i Attorney chent privilege (Confidential (ommor ic ations between an attorney and he her client i
- 6. The withheld information is esempted from public disclosure tiecause its disclosure would result m a clearly unwarranted mission of personal privacy ([XtMPTION 61
- 7. The withheld inforrheteon conomts of records compiled for law enforcemora purposes and is bemg withheld foe the reasonist indicated it AEMPilON 7)
Disclosure could reasonably lie espected to,iettere eth an enfo8 cement proceeding tiecause 11 could reveal the scope, directiott and focus of en forcement ettorts and thus could pc4sibiv idon it vm tb 'ake action to shicht potential wrongdoing or a violation of NRC reQupements bom evestigators t utMetlON 7 iAa Disclosure would constitute an unwarrante d thyosion of personal privacy it KEMPTIO'l 71C11 The information consists of names of individosis and other mf ormation the thsWisure of which could reasoriabiv t>e vicected to reveal dentities of i
confidentesi sources it xtMPliON 7 IDH Other PART li. C-DINYING OFFICIALS Pursuant to 10 CFR 9 26tbl and or 9 25 (c) of the U $ Nuclear Regulator, Commission retplations. it has been determmed that the mformaten withheld is enempt from production of disclosure. and that its pecutoction or disclosure is contrare to the public t-c. Nest. The persons responsible for the demal are those of ficiais identified ielow as denymg othcials and the Directoh Divmon of Freedom of information and Publicgtions $ervices OHice of Admimstration and Resources M!magement, (or any deme!s tha-t may be oppepled to the (secutive Director for Operations it001 DENYING OFFICIAL TITLE /OF FICE RECORDS DENIED APPELLATE OFFICIAL John C. Hoyle Assistant Secretary of the N '^"'
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cONei $$IOR PART 11. D-APPEAL RIGHTS The denial by each denyng officialidentihed in Pari 11 C may be oppealed to the Appellate Officist 4dentihed in that section Any such appeal must te in wntmg and must be made within 30 days of receipt of this response. Appesis must be eddressed as appropnate to the inecutive Director for Operations or to the Secretary of the Commission, U.$. Nuclear Regulatory Commesson. Washmgton. DC 20555, and should clearly state on the envelope and m the letter that it is an " Appeal from en initial 80lA Decision "
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Ret FOIA-89-546 i
APPENDIX P DOCUMENT BEING PIACED IN THE PDR NUMBER DATE DESCRIPTION 1.
10/18/89 SECY-89-321, entitled:
" Revisions to Procedures To Issue Orders - 10 C.F.R. Part 2."
(27 pages) t
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Ret FOIA-89-546 APPENDIX Q DOCUMENT BEING WITHHELD IN ITS ENTIRETY 1
NUMBER DATE DESCRIPTION 1.
8/3/87 Memo from William C. Parler to Commissioner Bernthal, subject:
OI Comments on SECY 152. (7 pages) Withheld pursuant to Exemption 5.
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e NUCLEAR LICENSING REPORTS Executive Offices:
Mail Order Address:
s 200 A Monroe Street, Suite 225 P.O. Box 10866 Rockville, Maryland 20850 Rockville. Maryland 20850 (301) 424-4132 December 15, 1989
[REEDOM OF INF0FM10N ACT REQUEST
% M I~ g 4 Mr. Donnie H. Crissley, Director Division of Freedom of Information j
g.-Q and Publication Services jO Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555
Dear Mr. Grimsley:
Pursuant to the Treedom of Information Act, Nuclear Licensing keports requests copies of the records listed below.
Nuclear Licensing Reports is a monthly newsletter designed to inform NRC and Agreement State licensees about new and proposed changes in NRC and state regulations and policies in order that licensees may be better able to carry out their operations in a safe and cost effective manner.
Included among its subscribers are NRC and Agreement State licensees. Tederal and state regulatory agencies Congressional committees, and members of the public.
Pursuant to the TOIA and NRC regulations Nuclear Licensing Reports requests a waiver of search and processing costs, and the first 100 pages of copying costs, as a news media organization.
Please send the records directly to me at the Monroe Street address listed above.
Should the number of pages exceed 100, please send the first 100 pages to me, and the remaining pages to the PDR reproduction contractor for copying and charge to my FMI account.
Sin
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J eph M. Telton Records Requestedt
. Records relating to the background and purpose of a rule being prepared by the Office of Enforcement on " Holding Unlicensed Persons Accountable for Willful Misconduct".
The memo to the EDO requesting approval of the rule.
The status of the rule.
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RULEMAKING ISSUEm-..-3n *P.
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FOR:
The Comissioners FROM:
William C. Parler General Counsel
SUBJECT:
REVISIONS TO PROCEDURES TO ISSUE ORDERS - 10 C.F.R. PART 2 PURPOSE:
To obtain approval to initiate a rulemaking to revise the Comission's procedures in 10 C.F.R. Part 2, Subpart B, for issuing orders to include persons not licensed by the Comission but who are otherwise subject to the i
Commission's jurisdiction.
The proposed amendments would more fully reflect the Comission s existing statutory authority to issue orders than is presently the case. The t
proposed amendments also would clarify the types of Comission orders
- to which hearing rights attach.
BACKGROUND:
The proposed rulemaking recommended for Comission approval proposes procedural changes to 10 C.F.R. Part 2, Subpart B, regarding the issuance of orders and orders to show cause to persons (corporate and individuals) not licensed by the Comission but who engage in activities subject to the Comission's jurisdiction.
These changes will make the Comission's Rules of Practice more consistent with our existing statutory authority.
The proposed rules are procedural in nature. They do not establish the substantive standards or conditions under which the NRC would issue an order to a licensed or unlicensed person.
The staff his been directed to submit to the Commission, in a separate rulemaking, a substantive addition to its regulations in order to put unlicensed persons on notice that they may be held accountable for willful misconduct which undermines, or calls into F
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j question, adequate protection of the public health and safety. The intended scope of the substantive rule will be set forth in that rulemaking, j
The proposed change to i 2.202 establishes the procedural mechanism to issue orders to unlicensed persons. The 1
procedural mechanism for issuing orders to show cause to licensees and other persons wou !d be set forth in a separate section (revised i 2.204) in order to make it clear that the right to a hearing does not attach at the time of issuance of a show cause order which requires only that information be an order to modify, provided in order to determine whether suspend or revoke a license or fur other appropriate action should be issued.
Further, the ED0's authority to issue such orders wuuld not be liraited to emergencies, as in the current regulations.
To conform to the char.ges to il 2.202 and 2.204, conforrain are also proposed to il 2.1 (scope) and 2.700 (g changes scope of subpart).
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Portions of this proposed rulemaking to revise the procedures to issue orders to include persons not licensed diso are responsive in part to a memorandum dated Jur,e 29, 1989 from Sanuel J. Chilk to Victor Stello, Jr.,
"SECY-89-151 -- Identifying and Infoming Others of Wrongdoers and initiating Rulemaking to Permit the issuance i
of Orders to Non-Licensees."
As mentioned above, the staff intends to submit, in accordance with SECY-89-151, Option 1, and Secretary Chilk's June 29, 1989 memorandum, a proposed rulemaking containing a substantive addition to the regulations in order to put unlicensed individuals on notice that they may be held accountable for willful misconduct which causes a licensee to violate an NRC requirement or which places in question reasonable assurance of adequate protection of the public health and safety.
However, the changes to 10 C.F.R. Part 2 proposed here have a utility independent of the staff's rieod to track wrongdoers, as discussed below.
Moreover, the establishment of the procedural mechanism to I d issue orders to indiviauals also should resolve a concern raised some time ago in response to the Consnission's proposed adoption of regulations on Completeness and 8,
Accuracy of information.
In those comments, the United I
States Department of Justice expressed concern that in its civil enforcement program the Corsnission does not impose civil penalties against individuals, but only against licensees, resulting in a particular problem in a marginal criminal case where a civil penalty against the individual
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could be the preferred resolution. See letter dated December 18, 1986 from Victoria ToensTiig, U.S. Department 4
of Justice, to William C. Parler, U.S. Nuclear Regulatory Comission.
DISCUSSION:
The current provisions in the Comission's Rules of Practice for issuing show cause orders only address licensees. However, the Comission's statutory authority to issue orders, which is found in Section 161 of the Atomic Energy Act of 1954, as amended, is not so limited.
In f act, the Comission's Atomic Energy Act authority to 1ssue orders is extreuely broad, extending to any person (defined in Section 11s to include, for example, any individual, corporation, federal, state and local agency) who engages in conduct within the Comission's subject-matterjurisdiction. The few court cases which ceal with the scope of the general authority Congress has granted the Comission usually do so in a general ciscus-sion or in passing and conclude that Section 161 confers uniquely broad and flexible authority on the Comission.
see Power Reactor Dev. Co. v. International Union of ETe'c. Radio and Mach. Workers. AFL-CIO, 367 U.S. 396 (1961); Connecticut Light and Power Co. v. Nuclear Regulatory Conm'n, 673 F.2d 525, 527, n. 3 (D.C. Cir.
1982); Hew Hampshire v. Atomic Energy Com'n, 406 F.2d 170, 173-74 (1st Cir.1969); siegel v. Atomic Energy Cors.1'n, 400 F.2d 779, 783 (D.C. Cir.1968); but cf. Reyno1cs v.
United States, 286 F.2d 433 (9th Cir.1960) (interpreting Section 1611 in detail and holding in the context of the AEC's bonb testing activities, that Section 161i(3) authori:ed the AEC to take action to govern the activities of private licensees and not the activities of the l
Comission itself; the court's use of the word " licensee" is dictum with regard to the term in the context of this paper).
Section 1611 provides broad authority to issue orders as the Comission deems necessary to govern any activity authorized pursuant to the Atomic Energy Act in order to protect the public health and safety.
Section 161b similarly authorizes the Commission to issue orders to establish such standards and instructions to govern the possession and use of special nuclear material, source material, ano byproduct material, as may be necessary or desirable to provide for the comon defense and security s
and protect the public health and safety. As relevant here, Section 1610 authorizes the Comission to order reports as may be necessary to effectuate the purposes of the Act.
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Given this broad authority, it is appropriate to amend 10 C.F.R. I 2.202 to have the to issue orders, as necessary, procedural mechanism in place to unlicensed persons, both corporate and individual, when such persons have demon-strated that future control over their activities subject to the NRC's jurisdiction is necessary or desirable to i
protect public health and safety or to minimize danger to life or property or to protect the common defense and security. This amendment would revise i 2.202 to establish 1
that mechanism both as to a licensee, as the current i 2.202 provides, and to any person subject to the jurisdiction of the Commission.
Such a person includes, but is not limited to, a person who held a license or who j
was otherwise engaged in licensed activities at the time of the conduct in question, but who no longer holds a license or is so engaged, and to vendors, contractors, and certificate holders.
i In cddition, the procedural mechanism for issuing orders to i
show cause to licensees and other persons would be set
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forth in a separate section (revised i 2.204) in order to make it clear that the right to a hearing does not attach at the time of issuance of a show cause order. Orders, including orders to show cause, currently are issued under Section 161 of the Atomic Energy Act of 1954, as amended which are implemented by li 2.202 (order to show cause) a,nd 2.204 (order for modification license).
In addition, civil penalty orders are issued under Section 234, implementec by i 2.205 (c1v11 penalties). NRC practice comonly has been to issue a single order, an order to show cause, which requires that certain information be provided to oemonstrute why either a proposed or immeciately effective action modifying, suspending, or revoking a license or a proposed order for such other action as may be appropriate, should not be taken. The order affords a hearing with regard to these actions. While Section 189 of the Atomic Energy Act provides for the granting of a hearing in connection with proceedings to modify, suspend, or revoke a license and certain other enumerated actions, neither the Act nur the Administrative Procedure Act would require a hearing in connection with an order to show cause which requires only the submission of information, but does not by its terms modify, suspend or revoke a license.
The Atomic Energv Act does not explicitly set out the form or requirements for an order to show cause.
The Atomic Energy A:t does, however, authorize the Comission to collect information pursuant to Sections 161c and o and the Comission may issue show cause orders to implement this
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5 authority. Section 182 of the Act authorizes the Comission to request information from licensees and the Cosnissicn has implemented this authority by promulgating regulations such cs 10 C.F.R. I 50.54(f). Licensees subject to Connission requests under 10 C.F.R. I 50.54(f),
or its equivalent in other parts of the NRC's regulaticns, i
have no hearing rights under the Act regarding these information requests.
Separation of the Connission's order to show cause authority from the Connission's general ordering authority, contained in revised i 2.202, will clarify that hearing rights do not attach to the former.
The provisions concerning orders to show cause are set forth in a revised i 2.204. Under the proposed rule changes, an order to show cause will be issued only to require the submission of information.
If an order to show cause is issued as part of an order requiring action, hearing rights will be offered but only with respect to the provisions of the order requiring action.
The order will provide that the answer, if not consenting to the required action, may explain why the order should not have been issueo.
In order to avoid unnecessary duplication in the regulations, it is proposea that the current language of 5 2.204, " Order for modification of license," be deleted from Part 2, since procedures for modification of a license have been included in revised i 2.202. Reviseu 6 2.202(f) provides that if the action ordered by the Comission constitutes a backfit of a Part 50 licensee, the procedures describec in 10 C.F.R. i 50.109 niust be followed, unless the action is consented to.
This provision currently appears in the last sentence of i 2.204 Section 2.202 is also revised to provide that if the licensee or other person to whom an order is issued consents to its issuance, or the order confirms actions agreed to by the licensee or such other person, such l
consent or agreement constitutes a waiver by the licensee or such other person of a right to a' hearing and ony associated rights.
Such orders will be immediately effec-tive.
This is not a departure from current Consission practice, but merely conforms the Connission's regulations to such practice.
S e e, e. g _._ Minnesota Mining and Manufacturing Co., FCeTn er,220-2E-02 IT5'diTytng License, Ef f ective Imediately,onfimatory Order C
December 21, 1988, 53 Fed. Reg. 52534(1988).
Section2.202(d)also provides that the licensee's or other person's agreement to an order must be in writing.
The addition of this
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6-provision is intended to minimize the possibility of issuance of a confimatory order which does not accurately reflect the agreement reached by the parties. Whether or not the licensee or other person consents tu any order, a person adversely affected by an order issued under i 2.202 to modify, suspend or revoke a license will be offered an opportunity for a hearing pursuant to Section 189 of the Atomic Energy Act, consistent with current practice and the authority of the Comission to define the scope of the proceeding.
SeeBellottiv.NRC,725F.2d1380(D.C.Cir, i
1983).
The existing i 2.202 vests authority to issue orders in the Executive Director for Operations (EDO) and various staf f office ofrectors.
The existing rule limits the ED0's authority to issue orders only during an emergency.
Existing i 2.204 vests authority to issue orders in the Comission.
The revised rules consistently vest such authority in the Comission, leaving it to the Commision's internal delegation authority to celegate such authority to 3
others. This change will avoid the need to amend the regulation each time the title of one of the currently enumerated officials is changed, and will also remove the unnecessary limitation on the ED0's authority. However, the Commission's existing delegations should undergo a review to assure that they are clear, complete, and current.
Finally, to conform to the changes to il 2.202 and 2.204, i 2.1 is amended to specify that the scope of Part 2 includes the issuance of orders and orders to show cause to unlicensed persons, and i 2.700 is amended to specify that Subpart G (Rules of General Applicability) applies to all adjudications initiated by an order rather than just an order to show cause.
-RECOMMENDATICN:
That the Comission:
I.
Approve publication in the Federal Register of the l
I ndtice of proposec rulemaking in Enclosure A; 2.
Direct the staff to undertake a review of the M
Comission's existing delegations to assure they are i
clear, complate, and current, and piomptly revised l
when necessary; L
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Note:
3 a.
The notice of proposed rulemaking in Enclosure A will be published in the Feoeral Register allowing 60 days for public coment, b.
The Commission may wish to consider publishing this notice of proposed rulemaking in conjunction with publication of the proposed rulemaking
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containing the substar.tive changes imposing requirements on unlicensed persons.
c.
The issue of procedural changes to the regulations to clarify the Commission's authority to issue orders to persons who do not hold licenses was discussed before the House Subcommittee on Environment, Energy and Natural Resources during its decoraissioning hearings on August 3, 1989.
g d.
Since this proposed rule qualifies as a categorical exclusion under 10 C.F.R. 51.22(c),
neither an environmental impact statement nor an assessment has been prepared.
e.
The Subcommittee un Nuclear Regulation of the Senate Committee on Environment and Public Works, the Subcommittee on Energy and the Environment of the House Interior and Irisular Affairs Committee, the Subcomittee on Energy Conservation one Power of the House Energy and Comerce Committee, and the Subcommittee on Environment, Energy and Natural Resources of the House Committee on Government Operations will be informed of the rulemaking by letter such as Enclosure B.
f.
The Federal Register notice of proposed rulemaking will be distributed to affected licensees.
g.
A public announcement will be issued by the Office of Public Affairs when the proposed rulemaking is filed with the Office of the Feceral Register.
h.
Since the proposed rule is administrative in nature, coc tnerefore coes not result in tne "modificat1un of or aedition to syster..s, structure, components, or design of a facility m..
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f... or the procedures or organization required 1
to design, construct, or operate a facility, the f/'f ;!
staff believes that the backfit rule 10 C.F.R. 50.109, does not apply to the propose,d rule.
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William C. Parler General Counsel
Enclosures:
A.
Draft Federal Register ilotice
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B.
Draft Congressional Letter t
Commissioners' comments or consent should be provided directly to the Office of the Secretary by COB Friday, November 3, 1989.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Friday, October 27, 1989, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time'for anhlytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
DISTRIBUTION:
Commissioners OGC OIG LSS GPA REGIONAL OFFICES 2D0 ACRS ACNW ASLBP ASLAP SECY l
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Enclosure'A NUCLEAR REGULATORY COMi!SSION 10 C.F.R. Part 2 Revisions to Procedures to Issue Orders s
AGENCY:
Nuclear Regulatory Comission.
ACTI0il:-
Proposed rule.
SUlillARY: Tne Nuclear Regulatory Comission (NRC) proposes to revise the Comnissions procedures for issuing orders to include persons not licensed by the Comission but who are otherwise subject to the Commission's jurisdiction.
The proposed revisions would more accurately reflect the Cumission's existing statutory authority to issue orders than,is presently the case.
The revisions also clarify the types of Comission orders to which hearing rights attach.
DATES:
The coment period expires on (60 coys,efter publication in the Federal Register). Coments received after this date will be considered if.it
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is. practical to do so, but assurar.ce of consideration cannot be'given except as to comments received on or before this date.
ADDRESSES: Send written coments to the Secretary of the Comission, U.S.
Nuclear Regulatory Comnission, Washington, DC 20555, Attention: Docketing and Service Branch. Coments may also be delivered to the Office of the Secretary, U.S. Nuclear Regulatory Comission, One White Flint North,11555
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Rockville Pike, Rockville, liaryland, between 7:30 a.m. and 415 p.m. weekdays.
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j' Copies of any comments received may be examined and copied for a fee at the llRC Public Document Room, 2120 L Street, NW, Washington, DC between the hours of 7:45.a.m. and 4: 15 p.m. weekdays.
FOR FURTHER INFORMATION CONTACT: Mary E. Wagner, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, Telephone:
301-492-1683.
4 SUPPLEMENTARY INFORMATION:
1 Background
i The procedures to be followed by the Commission to initiate formal 4
enforcement action are found in the Commission's Rules of Practice set forth in 10 C.F.R. Part 2, Subpart B.
These ac.tions include-notices of vivlation, 1
t oescribed in 9 2.2(1, show cause orders, described fi. G 2.202, orders to i
modify licenses, described in i 2.204, and civil penalties, described in i 2.205.
j Until 1983, with the exception of the civil-penalty procedures in' u
l 6.2.205, the language in these procedures referred solely to licensees. At that time, it was recognizeo that the Commission's regulations did not provide a procedural mechanism to issue a formal notice of violation to an unlicensed i
s person (corporate or individual) who had violated Commission requirements.
For example, by referring only to licensees, the procedures in 5 2.201 did not address issuing a notice of violation to a person who possesseo radioactive ruterial without a license in violation of Commission requirements or an unlicensed person who violated provisions of 10 C.F.R. Part 21, which i
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l implements Section 206 of the Energy Reorganization Action of 1974.
' Consequently, the Comission amended its regulations to permit the issuance of notices of violations to unlicensed persons who violated Comission 1
requirements. Ch6nges were published in the Federal Register on Septeraber 28, 1983 (48 FR 44170) to amend i 2.200 (Scope'of subpart) ano i 2.201 (Notice of l
violation) to add the phrase "or other person subject to the jurisdiction of the Comission."
As stated above, the provisions for issuing show cause orders only address licensees. Howiner, Inc Cor.nission's statutory 6uthority to issue orders, which is found in Section 161 of the Atomic Energy Act of 1954, as diaendeo, 42 U.S.C. i 2201, is not so limited.
In fact, the Comission's Atomic Energy Act authority to issue orders is extremely broad, e'xtending to any person (defined 'n Section 11s to include, e.g., any inoividual, i
corporation, federal, state one local agency) who engages in conduct within the Comission's suoject natur jurisdiction.
The-few court cases wnicn deal with the scopa of the general authority Congress has granted the Cornission usually do so in a genera'i discussion or in passing and conclude that Section 161 confers uniquely broad and flexible o' thority on the Connission.
u See Power Reactor Dev. Co. v. International Union of Elec. Radio and Hocn.
Workers, AFL-C3 367 U.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 7.2d 170,173-74 (1st Cir.1969);
Siegel v. Atomic Energy Com'n, 400 F.2d 771, 783 (D.C. Cir.1968); but cf.
Reynolds v. United States, 286 F.2d 433 (9th Cir.1960) (interpreting Section 1611 in detail ano holding, in the context cf the AEC's bomb testing
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activities, that Section 1611(3) authorized the AEC to take action to govern i
the activities of private licensees and not the activities of the Comission itself; the court's use of the vord " licensee" is dictum with regard to the ters in the context of this notice).
Cases analyzing the Federal Comunications Comission's (FCC) enabling 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 Comunications 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.
I 1541 (1982). This provision is similar to Section 1611(3) of the Atomic Energy Act of 1954, which authorizes the Comission to " prescribe such rules, regulations, and orders as it may. deem ne.cessary to govern any activity a'uthori:ed pursuant to tne [ Atomic Energy Act of 1954]... In orcer to protect healtn and to minimize oanger to life or property...." 42 U.S.C.
5 2201(1) (3) (1982). A number of cases have analyzed Section 1541 ui detail L
and dettrmined that the FCC's oraering authority is necessarily bread.
See Federal Comunications Comission v. National Citizens Coumittee for Broadcasting, 436 U.S. 775 at 793 (1978); Uniteo States v. Storer F
Broadcasting Co., 351 U.S.192 at 203 (1955); National Broaocasting Co. v.
United States, 319 U.S. 190 at 196 (1943); Lincoln Telephone and Telegraph Co.
- v. Feder61 Communications Comission, 659 F.2d 1092 (D.C. Cir.1981); American Telephone and Telegraph v. Federal Communications Cumission, 487 F.2d 865 (do
.s l
Cir.1973); GTE Service Corp. v. Federal Communications Comission, 474 F.2d L
724 (2d Cir.1973); and Western Union Telegraph Co. v. United States, 267 F.2d L
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4, 715,722(2noCir.1959).
It has been held that-the FCC has authority to issue orders under Section 154i to persons whether licensed or not. Uniteo States v. Southwestern Cable, 392 U.S. 157 at 180-81 (1968).
Section 1611 provioes broad authority to issue orders as the Cocr.iission deems necessary to govern any activity authorized pursuant to the Atomic Energy Act in oroer to protect the public health and safety.
Section 161b similarly authorizes the Comission to issue orders to establish standards and i
instructions to govern the possession and use of special nuclear material, source material, and byproouct naterial. As relevant here, Section 161o authorizes the Commission to order reports as may be necessary to effectuate the purposes of the Act.
Given this broao statutory authority, 'it is appropriate to amend
' 10 C.F.R. I 2.202 to have the procedural, mechanism in place to issue orders, as necessary, to unlicensed persons when such persons have demonstrateo that future control over their activities subject to the HRC's jurisolction is L
deemed to be necessary or desirable to protect public health ano safety or to minimize danger to life er property or to protect the comon defense ano security. This amendment would revise i 2.202 to establish that mechanism both as to a licensee, as the current i 2.202 provides, and to any person subject to the jurisdiction of the Comission.
Such a person includes, but is l -
not limited to, a person who hela a license or who was otherwise engaged in licensed activities at the time of the conduct in question, but who no longer L
holds a license or is so engaged.
D In addition, the procedural mechanism for issuing orders to show cause to licensees and other persons would be set forth in a separate section in order l'
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to make it clear that the right to a hearing does not attach at the time of i
issuance of e-show cause order. Orders, including orders to show cduse, i
currently are issued under 5161 of the Atomic Energy Act of 1954, as auended, which are implenenteo by li 2.202 (order to show cause), and 2.204 (order for modification'oflicense),
In addition, civil penalty orders are issued under i
Section 234, implemented by 9 2.205 (civil penalties).
NRC practice correonly has been to issue a single order, an order to show cause, which requires that certain information be provided to demonstrate why either 4 proposed or imme-diately effective action modifying, suspendino, or revoking a license should not be taken. The order effords a hearing vith regard to these actions.
While i 189 of the Atomic Energy Act provides for the granting of a hearing in connection with proceedings to modify, suspend, or revoke a license, neither the Act nor the Aaministrative-Procecure Act would require a hearing in con-nection with an oroer to show cause which requires only the submission vf information, but oues not by its terms modify, suspend or revoke a license.
The Act does not explicitly set out the form or requirements for an order to show cause.
The-Act ooes, however, authorize the Commission to collect information pursuant to il 161c and o and the Comission may issue show cause orders to implement th1s dutnority.
Section 182 of the Act authorizes the Comission to request information from licensees and the Comission nos implemented this authority by promulgating regulations such as 10 C.F.R. 950.54(f).
Licensees subject to Comission requests under 10 C.F.R. 9 50.54(f) or its equivalent in nther 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 show cause orcers, the Cormission proposes to separate its order to show cause authority from the Conmiission's general ordering authority contained in i 2.202. The provisions concerning orders to show cause are set forth in a new i 2.204 Under the proposto rule changes, an order to show cause will be issued only to require the submission of information.
If on order to show cause is issued as port of an order requiring action, hearing rights will be vffered but only with respect to the provisions of the order requiring action.
In order to avoia unnecessary duplication in the regulations, it is proposed that the current i 2.204, " Order for modification of license," be deleted fron Part 2, since procedures for modification of a license are included in proposed 5 2.202.
Proposed 5 2.202(f) provides that if the action ordered by the Curxnission constitutes a backfit of a Part 50 licensee, the
. procedures described in 10 C.F.R. 6 50.109 must be followed.
This provision currently appears in the last sentence of 6 2.204 Section 2.202 is also revised to provide that if the licensee or other person cu whom an order is issued consents to its issuance, or the order confirms dctions agreed to by the licensee or such other person, suen consent ur agreement constitutes a waiver by the licensee or such other person of a right to a hearing and any associated rights.
Such orders will be imediately effective. This is not a ceparture from current Comission practice, but merely conforms the Commission's regulations to such practice. Sedico 2.202(d) also provides that the licensee's or other person's agreereent to an order must be in writing.
The addition of this provisio1 is intended w.
minimize the possibility of issuance of a confiructory order wnich does not
accurately reflect the agreement reached by the parties. Whether or not the licensee or otner person consents to any order, a person aaversely affected by an order issued unoer 5 2.202 to mootfy, suspend or revoke a license will be offered an opportunity for a hearing pursuant to i 189 of the Atomic Energy Act, consistent with current practice and tne authority of the Commission to define the scope of the pretteding.
See Bellotti v. IIRC, 725 F.2d 1380 (D.C.
Cir.'1983).
The existing i 2.202 vests authority to issue orders in the Executive DirectorforOperations(EDO),andvarivusstaffofficedirectors. Cu rrent ly,
the rule limits the ED0's authority to issue orders to emergency. situotions.
Existing l'2.204 vests authority to issue orders in the Commission. The revised rules consistently vest such authority in the Commission,'lecving it to the Commission's internal delegation authority to delegote such authority to others.
This change will avoid tne need to amend the regulations.each time tne title of one of the currently enumerated officials is changed, ano it will also remove the unnecessery limitation on the ED0's autnority.
The Commission is retainitig, In new i 2.202(e), a provision that, upon a finding that the public health, safety or Interest so requires or that the violatiun is willful, the proposed action may be immediately effective.
A similiar provision appears in current il 2.202(f) and 2.204 A finding, in an order, of the need for immediate effectiveness is finol and viot subject to
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administrative challenge.1/ Relief from the requirements of an inmediately effective order, un the other hand, mey be sought under the relaxation provisions containea in that order, or by motion for e stay to the presiding officer if a hearing has been requested.
The proposed rule also continues, in i 2.202(f), the backfitting requirements of i 50.109, including the provision therein that when immediately effective action is required, the documented evaluation may follow, rather then precede, the regulatory action.
Finally, consistent we.i tne changes to it i.202 and 2.204, 6 2.1 is duended to specify tnat the scope of Part 2 includes the issuonce of orders and orders to show 'cause to unlicensed persons, and i 2.700 is amended to
'specify that Subport G (Rules of General Applicobility) applies to all
-adjuuications initiated by an orcer, rather than just an order to show cause.
~ The proposed amendments are procedural in nature. They do not establish the substantive standards or conditions under which the 14RC would issue an order to a licenseo or en unlicensed person.
The Commission intenos to propose, in a separate rulemaking, a substantive addition to its regulations in order to put unlicensed persons on notice that they may be held accountable for willful misconduct which undermines, or calis into question, adequate protection of the public health and safety.
Once the proposed rules are in effect,' consistent with the Consnission's statutory authority, there will be 1/
Of course, the Commission has the inherent power to review, sua sponte, orcers issued by those to whom it has aelegated autnority.
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procedural rules governing the issuance of an order or show cause order not only to a licensee, as currently provided, but also to an unlicensed person who willfully causes a licensee to be in violation of Comission requirements or whose willful misconduct undermines, or calls tnto question, the adequate protection of the public health and safety in connection with activities regulated by the NRC under the Atomic Energy Act of 1954, as amended.
An example of a situation in which it might be appropriate to issue an order to an unlicensed person is where an employee of a corporate licensee uight willfully cause that licensee to be in violation of Cumission requirements such tilot the Comissiori does not have reasonable assurance that requirements to protect the public health and safety will be followeo if that person continues to engage in activities licensed by the Comission.
Another example woulo be on unlicensed persun whu. willfully provides the Commission with materially false information; tnis would not, of course, include such persons who, in goud f aith, bring information ur make allegations to tne llRC concerning safety matters-whicn, after review, are found to be unsubstantiated. Depending on the circumstances in these two cases, it might be appropriate to issue an order to such a person to either prohibit the person from being involved in activities licensed by the Commission or require the person to provice prior notice to the Cummisstun before engaging in licensed activities. These types of concit1ons have been used by the Comission in settlenant of litigation in accordance with 10 C.F.R. 2.203.
Edward Hines, Jr. Iledical Center, 27 NRC 477, ALJ-88-2 (October 7,1988), and Finlay Testing Loborotories, Inc., LBP-88-17, 27 I!RC 586 (1988).
I
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This rulemaking establishes the procedures to be used in issuing orders to licensed and unlicenseo persons.
The procedures establish the mecnanisai to provice notice of the issuance of an order and to resolve, through adjudica-tion, whether a particular oroer is appropriate under the circumstances.
Environmental Impact:
Categorical Exclusion The NRC has determined that this proposed rule is the type of action described in categorical-exclusion 10 C.F.R. 51.22(c)(1). Therefore neither an environmental impact statement nur an environmental assessment has oeen L
prepared for this proposed rule.
Paperwork Reduction *Act Statenent This proposeo rule contains no infornation collection requirecents and therefore is not subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
l Regulatory Analysis l
The existing regulations in 10 C.F.R. 2.202 authorize the I RC, through its designatea officials, to institute a proceeding to nodify, suspend, or revoke a license by service of an oroer to show cause on a licensee.
The regulations, as currently written, do not provide procedures for tne NHC to L
take direct action against unlicenseo persons whose willful misconouct causes
- a. licensee to violate Commission requirements or places in question reasonable L
assurance of adequate protection of the public health ano safety, although l
l such action is authorized by the atouic Energy Act of 1954, as amended.
The 1
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amendments will make the Commission's Rules of Practice more consistent with the Comission's existing statutory authority and provide the appropriate procedural framework to take ectivo, in appropriate cases, in order to protect the public health and safety. The amendments also will make clear that hearing ' rights do not attach to orders to shuw cause, consistent with i 189 uf the Atotaic Energy Act of 1954, as amended, and the Administrative Proceduru
- Act, lhe proposed rule constitutes the preferred course of action and the cost involved in its promulgation and application is necessary and dppropriate.
The foregoing discussion constitutes the regulatory entlysis for this proposed ru le.
Regulatory Flex 1biltty Certification As requireo by tne Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)),
the Comisslun certifies that this rule, if aoopted, will not hdve a signif-icant economic impact un a substantial number of small entities.
The proposeo rule establishes the procedural mechanism to issue oroers to show cause tu unlicensed persons in doottion to licensed persons, who were previously covered.
Tne proposed rule, vy itself, does not impose any obligations on i
entities including any regulated entities that may fall within the definition of "small entities" as set forth in ) 501(3) of the Regulatory Flexibility Act, or within the oefinition of "small business" as found in i 3 of'the Small Business Act, 15 U.S.C. 5 632, or within the Small Business Size Standards 1
found in 13 C.F.R. Part 121. Such obligations would not be created until an t
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order is issued, at which time the person subject to the order would have a right to a hearing in accordance with the regulations.
Backfit Analysis This proposed rule coes not involve any new provisions which would impose-i backfits as defined in 10 C.F.R. 50.109(a)(1). Accordingly no backfit analysis' pursuant to 10 C.F.R. 50.109(c) is required for this pruposed rule.
List of Subjects in 10 C.F.R. Part 2 Aaministrative practice and prncedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear meterials, Nuclear power plants and reac' tors, Penalty, Sex discrimination, Source material, Special nuclear material, Waste treatment,and disposal.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amenced, the Energy Reorganization Act of 1974, I-(
l-as amended, eoo 5 U.S.C. 552 and 553, the NRC is proposing to adopt the following amenoments to 10 C.F.R. Part 2.
1 Part 2 -- Rules of Practice for Domestic Licensing Pruceecings 1.
The authority citation for Part 2 is revised to read as follows:
l Authority:
Secs.161,181, 68 Stat. 948, 953, as amended (42 U.S.C.
2201, 2231); sec. 191, as amerd d, Pub. L.87-615, 76 Stat. 409 (42 U.S.C.
2241);sec.201,85 Stat. 1242, as amendeu (42 U.S.C. 5941); 5 U.S.C. 552.
Sec. 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as omenced (42 U.S.C. 2073, 2092,
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2093, 2111, 2133, 2134, 2135); sec.102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Sta t.1248 (42 U.S.C. 5871). Sections 1
2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134,2135,2233,2239).
Section 2.105 also issued under Pub. L.97-415, 96 Stat.2073(42U.S.C.2239). Sections 2.200-2.206 also issued under secs.
161b, i, o, 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, os amended (42 U.S.C. 2201(b), (i), (o), 2236, 2282); sec. 206, 88 Stat.1246 (42 U.S.C.
5646). Sections 2.600-2.606 also issued under sec. 102, Pub. L.91-190, 83 Stat. 853, as omended (42 U.S.C. 4332).
Sections 2.7004, 2.710 also issued under 5 U.S.C. 554 Sections 2.754, 2.760, 2.770, 2.780 also issued under 5 t
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.10155,10161).
Section 2.790 elsb issued under sec.103, 68 Stat. 936, as amendeu (42 U.S.C.
2133) and 5 U.S.C. 552.
Sections 2.800 and 2.808 also issued under 5 U.S.C.
553. Section 2.809 also issued under 5 U.S.C. 553 anu sec. 29, Pub. L.85-256, 71 Stat. 579, as am.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 B also issued under sec. 10,
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Pub. L.99-240, 99 Stat. 1842 (42 U.S.C. 2021b et seq.).
l 2.
f 2.1 1s revised to read as follows:
L
$ 2.1 Scope.
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c _,
This part governs the conduct of all proceedings, other than export and 1rgort licensing proceedings aescribed in Part 110, under the Atumic Energy Act of 1954, as amended, and the Energy Reorganization Act of 1974, for:
(a) granting, suspending, revoking, amending, or taking other action with respect to any license, construction permit, or application to transfer a license; (b; issuing orders and orders to show cause to persons subject to the Commission's jurisdiction, including licensees 6nd persons not licensed by the Commi:sion; i
(c) imposing, civil penalties under section 234 of the Act; and (d) public rulema king.
- 3. -l'2.202 is revised to read as follows:
'l 2.202 Orders.
(a) The Conmis, an may institute a proceeding to modify, suspend, or revoke a license br for such other action as may be proper by serving on the licensee or other person subject to the jurisdiction of the Commission an l
orcer that will:
(1) Allege the violations with which the licensee or other person subject to the Con.1ission's jurisoiction is chorged, or the potentially l
hazardous conoitions or other facts deemed to be sufficient ground for the proposed action, and specify the-action proposed; (2) Provide that the licensee or other person must file a written answer to the oroer under oath or offirmation within twenty (20) days of its cate, or l
such other time as may be specified in the order; L
(3)
Inform the licensee or other person of his right, within twenty (20) days of the date of the order, or such other time as may be specified in the l
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order, to demand a hearing on all or part of the order, except in a case whe're the licensee or other person nas consented to tne order; (4) Specify tne issues; and (5) State the effective date of the order.
(b) A licensee or other person to whom the Commission has issued en order under this section must respond to the order by filing a written answer under oath or affirmation. The answer shall specifically admit or deny each allegation or charge made in the order, and shall set furth the matters of fact and law on whicn the licensee or other person relies, 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-hearing.
(c) if the answer demands a hearing,'the Commission will issue an order oesignating the time and place of. hearing.
(d) An answur or stipulation may consent to the entry of an order in substantially the form proposed in the order with respect to all or some of the actions proposed in the orcer.
The consent of the licensee or other person to whom the order has been issued to the entry of an order shall constitute a waiver by the licensee or other person of a hearing, finoings of fact and conclusions of law, and of all r1gnt to seek Commission and judicial review or to contest the valioity of the order in any forum as to those udtters which have been consented to or agreed to or on which a neari,ig nas not been requested. The orcer shall have the same f'orce and effect as on order made after hearing by a presiding officer or the Couuission, and shall be effective as previoed in the order.
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1 (e) When the Cunnission finos that the public health, safety, or interest so requires or that the viulation or conduct causing the violation is willful, the order saay provide, for stated reasons,.that the propused action be immediately effective.
-(f)- If the order involves the modification of a Part 50 license und is a backfit, the requirements of 9 50.109 of this chapter shall be followed, unless the licensee has consented to the action required.
4 5 2.204 is revised to read as follows:
9 2.204 Order to show cause.
(a) - The Connission may issue to a licensee or other person subject to i
the jurisdiction of the Conaission an order to show cause why such actions as may be pruper should nut be token, which,will:
(1) Allege the violations with which the licensee or other person is charged, or the potentially hozardous conditiuns or other facts deeled to be sufficient ground for the proposed action, and specify the action proposed; and (2) Provide that the licensee or other person must file a written answer to the order to snow cause under oath or affirmation within twenty (20) days of its date, or such other tirae as may be specified in the order to show cause.
(b) A licensee or other person to whom the Commission has issued an-order to show cause under this section must respond to the order by filing a written answer under oath or affinnation.
The answer shall specific 611y admit or deny each allegation or charge made in the order tu show cause, and shall
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-set forth the matters of fact and law on which the licensee or other person relles.
(c) An answer or stipulation r.my consent to the entry of an order in substantially the form proposed in the order to show-cause.
(d) Upon review of the answer filed pursuant to paragraph (a)(2) of this section, or if no answer is filed, the Commission may institute a proceeding
~
pursuant to 10 C.F.R. 2.202 to take the action proposed in the orcer to show cause or such other action as may be proper.
5.
$ 2.700 is revised to read as follows:
i 2.700 Scope of subpart.
The general' rules in this subpart govern procedure in all adjuuications 1oitia.ted by tne issuance of an orcer pursuant to 9 2.202, an order pursuant to 9 2.205(e), a notice of nearing, a notice of proposed action. issued pursuant to 5 2.105, or a uutice issued pursuant to 6 2.102(d)(3).
Datec at Rockville, Maryland, this doy of 1989.
FOR THE HUCLEAR REGULATORY COMMISSI0tt Samuel J. Chilk Secretary of the Commission 1
e s
d< -
Enclosuro B go
- ORAFT CONGRESSIONAL LETTER
Dear Mr. Chairman:
(
Enclosed for your information are copies of a proposed rule to be published in the Federal Register.
The Commission is proposing to initiate a rulemaking to revise the Commission's procedures in 10 C.F.R. Part 2, Subpart B, for issuing orders to include persons not licensed by the Commission but who are otherwise subject to the Commission's jurisdiction.
The proposed amendments would more fully
[i reflect the Conmission's existing statutory authority to issue orders than is presently the case, and will also clarify the types of Commission orders to which hearing rights attach.
Sincerely, William C. Parler General Counsel
Enclosure:
As stated
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