Text

Submits Concerns Re Proposed Rule 10CFR2, Revs to Procedure to Issue Orders. Rule Imposes Adequate Evidence Test Analogous to Probable Cause Std Applied in Criminal Cases for Search & Arrest Warrants
	ML20056B495
Person / Time
Issue date:	05/17/1990
From:	Kohl C; NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	Carr, Roberts, Rogers; NRC COMMISSION (OCM)
Shared Package
ML19336C343	List: ML20056B459; ML20056B466; ML20056B474; ML20056B480; ML20056B483; ML20056B487; ML20056B488; ML20056B495; ML20056B500; ML20056B509; ML20056B510; ML20056B511;
References
	FRN-55FR27645, RULE-PR-2 AD60-1-09, AD60-1-9, NUDOCS 9008280360
	Download: ML20056B495 (8)
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UNITED STATES NUCLEAR REGULATORY COMMISSION

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c-ATOMIC SAFETY AND LICENSING APPEAL PANE O M bloO'l

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MEMORANDUM FOR:

Chairman Carr-Commissioner Roberts

' h '4 Commissioner Rogers Commissioner Curtiss N

Commissioner Remick d.

T FROM:

Christine N. Kohl Chairman Atomic Safety and Licensing

/8 h Appeal Panel

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SUBJECT:

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SECY-90-074A (May 10, 1990), REVISION.

TO RULES OF PRACTICE (10 C.F.R.

PART 2, SUBPART B)

By memorandum to the Commission dated March 12, 1990, the Appeal Panel commented on an earlier version of the above-referenced draft notice of proposed rulemaking.

The notice and proposed rule amendments have now been revised and, in addition, new changes to the involved tule are now being proposed.

The Panel has the following further concerns with regard to the proposed rules.

1.

The proposed rule imposes ~an " adequate evidenr.e" test, which, according to the accompanying supplementr.ry.

information at pp. 4-5, is' analogous to the "probabic cause" standard applied in criminal cases for search and arrest warrants.. Our prior comments questioned whether this is an appropriate test for determining if an NRC civil enforcement order should remain "immediately effective" while a hearing is pending on the underlying allegations of violations.

The SECY paper accompanying the proposed rule (at pp. 4-5)-

suggests that the, Appeal Panel did not question the " legal adequacy" of this test.

To be sure, in an effort to temper our views, we did not explicitly label the proposed rule as

" legally inadequate."

Lest there be any doubt, howcVer, after giving further consideration to the latest revisions of the proposed rule and accompanying explanatory This memorandum, like that of March 12, represents 1

the views of the Appeal Panel as a whole (i.e., all full-time members Lnd any availablo part-time members), not just my views as Chairman.

900B280360 900021 PDR PR 2 SSFR27645 PDR

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information, the Panel believes that there is indeed a significant question whether the proposed rule meets the requirements of due process.

In our March 12 memorandum, we suggested-that a better test for evaluating whether an enforcement order should remain immediately effective pending hearing would balance-(1) any immediate and irreparable harm to the subject of the order against (2) the public interest in having the order take immediate effect.

We noted that the factors in such a balancing test are similar to some of those considered in connection with stay requests under 10 C.F.R. $'2.788,2 and thus present a familiar framework for making the determination involved.

The SECY paper, however, rejects this approach.

At p.

5, it indicates that the four stay criteria of 10 C.F.R. 5 2.788 were considered but rejected as a potential standard for two reasons:

(1) "all four.

. criteria are not suitable.to the situation at hand," and (2) the

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" criteria would bring into the decision-making equation factors that.

.-are not relevant to a determination of how best to protect the public health, safety, or interest."

The four stay criteria, however, are not an all-or-nothing

" package deal'."

There is no apparent reason why the Commission could not borrow and adapt those factors that are appropriate for deternining the immediate effectiveness pendente lite of an enforcement order.

(That is essentially what the Commission has done in connection with its own "immediate effectiveness" reviews of reactor operating license authorizations under 10 C.F.R. 5 2.764(f)(2).)

As

-for the second-point, if AnY of the four stay factors is not relevant to the public health, safety, or interest, those criteria seemingly'should not be applied to any NRC decision, inasmuch as everything the agency does has public l

health, safety, or interest implications.

2 These factors are also similar to one of the alternative criteria used in deciding whether appellate review of an interlocutory order is appropriate -- i.e.,

whether a ruling threatens an adversely affected party with immediate and serious irreparable' impact that cannot be alleviated by a later appeal.

See Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1.and 2), ALAB-405, 5 NRC 1190, 1192 (1977).

A licensing board's consideration of an objection to the immediate effectiveness l

of a staff enforcement order is, in essence, a form of

" interlocutory" review.

Thus, it seems only fitting that some consideration be given to any serious irreparable harm to the objecting party that might be occasioned by the immediate effectiveness of the order.

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Implicit in the position outlined'in the SECY paper is the notion that consideration of anything other than the evjorcement staff's reasons for requiring its order to be immediately effective would somehow threaten the public health, safety, or interest and " interfere with the government's ability to deal appropriately with the situation."

(SECY Paper at p.

6. )

That simply is not so.

The test suggested in our previous memorandum'would balance any immediate and irreparable harm to the subject of the order against the public health, safety, and interest.

Immediate and irreparable harm would have to be demonstrated, not merely alleged, and protection of the public health, safety, and interest from any real threat would, of course. be paramount, as must always be.the case.

The SECY paper presents three arguments in support of the " adequate evidence" test:

(1) the burden is on the staff to show adequate evidence; (2) no balancing of public and private interests is involved; and (3) this test has been used in government procurement cases involving the i

suspension'of a government contractor's bidding rights.

We do not find these arguments persuasive, however.

First, the explicit imposition of the burden of proof on the staff is found in neither the rule Dpr the supplementary information, but only in the SECY paper.

Under 10 C.F.R.

I 2.732, "the applicant or the proponent of an order has the burden of proof."

Purpose:

To obtain Commission approval for changes to

.the Rules of Practice to provide for (1) expedited hearings in connection with immediately effective orders, (2) challenges to the immediate effectiveness of such orders, and (3) delays in the conduct of such hearings when necessery, e.g.,

to allow the Department of Justice to complete criminal investigation of the circumstances giving rise to the subject order.

Backaround:

In SECY-89-321, we proposed revisions to the commission's procedures for issuing orders (10 CFR Part 2, Subpart B).

The proposed revisions essentially were designed:

(1) to amend 10 C.F.R. 55 2.202 and 2.204 to put procedural mechanism in place for the Commission to issue orders, not only to licensees, but also to persons not licensed by the Commission but who are ctherwise subject to the Commission's jurisdiction; and (2) to make clear that hearing rights attach only to orders and not to "show cause" orders that demand information only.

Subsequent to the Commission's approval of SECY-89-321 (with suggested changes) but before the

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designated date for publication of that proposed rule in the Federal Register, we submitted to the Commission, in SECY-90-074, a proposal for further changes to section 2.202.

These changes were designed-to establish procedures, on the one hand, for the expeditious conduct of hearings involving immediately effective orders, including special procedures for' disposing of challenges to the immediate effectiveness of orders, and, on the other, for delay in the 1

merits hearing on such orders under certain l

circumstances, e.g. when a need for further investigation by the NRC, or by the Department of Justice.for possible criminal violation, warrants holding the adjudicatory proceeding in abeyance.

Developments in several enforcement proceedings before-the

-Licensing and Appeal Boards (e.g., Safety Licht and Finlav) suggested the need for inclusion of such provisions in the rule dealing with immediately effective orders.

While we had originally hoped that the changes proposed in SECY-90-074 would receive Commission approval in time to be published-in the Federal Register with the changes proposed in SECY-89-321 as a consolidated proposed rule, comments submitted by the chairmen of the Licensing and Appeal Panels on the SECY-90-074 proposed changes made it apparent that additional explanatory text, as well as certain refinements to those changes, would be in order. As a consequence, the rule change proposed in SECY-89-321 was published separately in accordance with the Staff kequirements Memorandum on SECY-89-321.

This supplement to SECY-90-074 addresses the comments of the panel chairmen.

Discussion:

SECY-90-074-proposed _ essentially three additions to the rule changes proposed in subpart B by SECY-89-321.

The additions, which porta.ned to immediately effective orders, corsisted of changes to section 2.202 to provide.

(1) for the expeditious conduct of hearings involving immediately effective orders, (2) special provisions for dealing with challenges to the immediate a

effectiveness of such orders, and (3) delays l

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in the conduct of the merits proceeding on such orders in'certain circumstances. The first and third of these proposed rule changes did not evoke any comments from the panel chairmen.

Both chairmen, however, raised questions concerning aspects of the second proposed rule change.

SECY-90-074 proposed that any challenge to the'immediate effectiveness of an order would have to be disposed of on an accelerated basis, and set a~ target of 15 days.- In addition, it proposed the establishment of an

" adequate evidence"' tedt to determine at the L

outset whether sufficient grounds existed to 1

l support immediate effectiveness. -Both L

chairmen, however, disagreed with the practicability of the 15 day limit.

Additionally, both chairmen expressed doubt over the workability of the adequate evidence

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test in certain' respects.

We consider these comments in order, l

i In their comments on.the 15-day period, both panel chairmen explained that the times specified in the existing procedural rules for filing of motions and responses would consume most, if not all, of the 15-day i

period.

In addition, the need in some cases l

to resolve antecedent questions of standing l

or jurisdiction would render meeting that time period in those cases exceedingly difficult, if not impossible.

I' When we selected the 15-day period for resolving challenges to immediate L

cffectiveness, we realized that the times normally allowed by the existing procedural rules for the filing of the various submissions would make achievement of that i

objective unrealistic.

We expected, however, L

that the presiding officers would interpret

-the clear expression in the proposed rule for expedition as a direction to exercise their broad powers to shorten those periods as necessary.

Both licensing and appeal boards have in the past shortened filing times and ordered the use of. rapid delivery means for service of papers saen circumstances called 1

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for such action.

Tha believed it was better to leave the rule general in this respect to allow presiding officers to adjust to the circumstances of each case. We also recognized that there could be instances, albeit infrequent, in which_ questions such as those of standing or jurisdiction.would have to be resolved beforehand as well, adding to the time problem.

Thus, we set the 15-day period not as an absolute requirement in the rule itself but in-the explanatory section as a strong expression of the Commission's intent that the mandate for rapid resolution of any challenge to immediate effectiveness be carried out by the presiding officers by judicious use of the powerr conferred them by the Rules of Practice.

In view of the comments of the panel chairmen, however, we have revised the-proposed rule to specify some of these details in the rule itself.

We have also expanded on the explanation of these proposed rule changes.

The rule now establishes the precise time when a motion-to set aside the immediate effectiveness of an order may be filed and sets a five day period for a response.

In addition, it specifically directs presiding officers to exercise their powers to regulate proceedings to set shortened times for various filings.

This includes specifying use of rapid means of service of papers.

The proposed rule also directs that a motion to set aside immediate effectiveness.

will tua decided expeditiously before other matters not required to be decided prior to a decision on the motion.

Thus, when a question of jurisdiction can be deferred for later resolution, it need not hold up disposition of the motion.. Finally, the 15-day period, set out (as before) in the explanatory section rather than in the rule itself, remains a goal and not an absolute requirement that must be met.

Turning to the comments on the adequate evidence standard for deciding the question

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9 of immediate effectiveness, it is significant that neither panel chairman questioned the-legal adequacy of the' test.

Rather, their comments essentially were concerned with the relative merits of the adequate evidence test and the traditional test for determining stay requests.

Their principal arguments against the. adequate evidence test were that: the test is novel to NRC practice and is therefore s".sceptible to causing greater delay at least during a learning period; it does not provide for balancing of the public and. private interests by including in its equation the factor of irreparable harm to the recipient of the order (one of the elements of the stay criteria).

In drafting the proposed rule, our overriding concern was the protection of the public health, safety, and interest.

With that in mind, we searched for a test that would

. preserve to the maximum the Commission's flexibility in deciding what actions to order in any given situation and at the same time would provide the subject of an immediately.

effective ordu protection against having to-comply with unwarranted action prior to a hearing on the order.

We considered the stay criteria but concluded that, as the panel

. chairmen-themselves recognized, all' four alcments of the criteria are not suitable to the situation at hand.1 Moreover, it was our view that those criteria would bring into the decision-making equation factors that, at bottom, are not relevant to a determination of how best to protect the public health, safety, or interest.

Where action must be taken to protect the public health, safety or irterest, possible injury to private interest IThese factors are:

(1)

Whether the moving party has made a strong showing that it is likely to prevail'on the merits; (2). Whether the party will be irreparably injured unless a stay is granted; (3)

Whether the granting of a stay-would harm other parties; and (4) Where the public interest lies. '10 C.F.R.

E 2.788.

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Commissioners-6 and other like factors cannot be allowed to

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interfere with the government's ability.to deal. appropriately with the situation.

In contrast, the adequate evidence test considers only the situation at hand that i

calls for the order involved.

At the same time it provides protection against inadequately based decisions by the-staff for making orders immediately effective by requiring it to make reasonable demonstration at the threshold stage of a proceeding, upon challenge, that its decision l

'is warranted. If the evidence is adequate, the order remains immediately effective while the proceeding continues The burden is on the staff to show adequa.e evidence.

No balancing of public ane private interests is required.

While novel to NRC practice, the concept of adequate evidence is not new to civil proceedings.

It Las been utilized.in connection with governme.nt procurement actions.

.In this regard, Its use has received judicial endorsement where an agency has applied it to disbar, on evidence of fraud, a government contractor from bidding on future government contracts prior to a hearing. See e.g.,

Transco security Inc.,

v.

Freeman, 639 F.

2d 318 (6th Cir. 1981), cert.

d_enied, 454 U.S. 820 (1981).

The rule proposed herein has diso been revised in other respects in response to other comments made by the panel chairmen.

For example, the rule has been revised to specify the procedure governing the filing of appeals from presiding officer decisions on immediate effectiveness.

The proposed rule now' specifies that a presiding officer's decision upholding immediate effectiveness will be final agency action on immediate effectiveness.

A decision setting aside immediate effectiveness, however, must be referred to the Commission itself and does not take effect pending further order of the Commission.

The purpose of these provisions is to minimize internal agency review of decicions on immediate effectiveness consistent with maintaining the Commission's

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ability to take necessary action to protect the public health, safety and interest.

The proposed rule also includes other revisions.

of a clarifying-nature.

Recommendatica:

That the Commission:

1.

Acorove the revision to 10 C.F.R.

S 2.202 as proposed herein.

(Enclosure A.)

2.

Note a.

That the rule proposed herein will be published in the Federal Register as a proposed rule.

Assuming Commission approval of the changes proposed herein, these changes and those already.

approved by the Commission in SECY-89-321 will be consolidated when published in.

the Federal Register as a final rule.

b.

That the cognizant.

Congressional Committees will

~11 cation be notified of the p 1

of this proposed ruli by a letter such as that a,tached.

(Enclosure B.)

M William C.

Parler General Counsel

Enclosures:

- A..-Federal Register Draft B.

Draft Letter i

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' Commissioners' comments.or consent should be provided directly-to the Office-of the Secretary by COB Wednesday, May~23, 199,0.

' Commission Staff Office comments, if any, should bensubmitted' to the Commissioners NLT Friday, May 18, 1990, with an infor-matior copy to the Office of.the Secretary.

If the paper is of ouch a nature that it requires additional time for analytical review and comment, the Commissioners and the Secrets,iat should be apprised of when comments-may be expected.

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Enclosure A NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 Revisions to Procedures To issue Orders AGENCY:

Nuclear Regulatory Commission.

ACTION:

-Proposed rule.

SUMMARY

The Nuclear Regulatory Commission (NRC) proposes to revise its

-i rule governing orders to provide f or the expeditious consideration of challenges to orders that are made immediately effective. The proposed amendments specifically allow challenges to the immediate effectiveness of an order to be made at the outset of a proceeding and provide procedures for l

the expedited consideration and disposition of such challenges. The l

proposed amendments also require thut challenges to the merits of an 1mmediately effective order be heard expeditiously, except where good cause i

exists for delay.

DATES:

The comment period expires on (60 days af ter publication in the Federal Register). Comments received atter this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to commrats received on or before this date.

ADDRESSES:

Send written comments to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, UC 20555, Attention:

Docketing and Service Branch. Comments may also be delivered to the Office of the Secretary, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockv111e Pike, Rockville, Maryland, between 7:30 a.m. and 4:15 p.m.

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1 wee kdays. Copies ot.any comments received may be examined and copied for a tee at the NRC Public Document Room, 2120 L Street, N.W., Washington, DC between the hours of 7:45 a.m. and 4:15-p.m. weekdays, e

.FOR FURTHER INFORMATION CONTACT:

John Cho, Office of the General Counsel,

' U.S. Nuclear Regulatory Commission, Washington, D.C.

20555, Telephone:

301-492-168b.

SUPPLEMENTARY INFORMATION:

P

Background

On April 3, 1990, the Commission published in the Federal Register, b5 FR 12370, proposed changes to 10 CFR Part 2, Subpart B.

The proposed changes, if adopted, would make clear that the provisions governing the issuance of orders include within their scope all persons subject to the jurisdiction of the Commission, licensees as well as non-licensees. As it exists now, except for orders imposing civil penalties, subpart B addresses issuance of orders only to licensees.

Other changes were also proposed to clarify that hearing rights attach only to orders, in contrast to demands to show cause; e.g., demands for explanation or other information. Upon further consideration, the Commission has decided that additional changes should be madt to subpart B. These additional changes pertain to orders that are made immediately effective.

Under current subpart B, as well as u;. der the April 3 proposed changes, orders can be made immeoiately effective when required to protect the public 2

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w health, saf ety, or interest or when there has been willful misconduct.

.There are no provisions, however, under the' existing rule or under the proposed changes, that specifically require that challer4es to such orders, f

including challenges to the immediate effectiveness of such orders, be heard expeditiously. The revisions proposed herein address this and other related matters.

i As the rule is structured, currently and under the April 3 proposal, the recipient of an order may answer it by consenting to the order or by l

challenging it by demanding a hearing.

Where the hearing demand concerns an order that is immediately effective, the person or persons to whom the order is issued are nevertheless required to comply with its provisions pending the completion of the hearing.

The imposition of this requirenent is necessary to enable the Commission to carry out its responsibility for protecting the public health, safety and interest.

The public health, saf ety and interest must be held paramount over any conflicting private interests. At the same time fairness considerations dictate that the interests of the. recipients be accommodated, to the extent it can be done without impediment to the Commission's exercise of its responsibility. To this end, the Commission is proposing further. changes to section 2.202, in addition to those published on April 3.

The Commission believes that a proper balance between the private and governmental interests involved is achieved by a hearing conducted on an accelerated basis. The revisions proposed herein add a provision to the earlier proposed section 2.202 directing that any requested hearing on an immediately effective order will be conducted expeditiously, giving due consideration to the rights of the parties. Another added provision allows 3

y if) l challenges to be made at the outset on the need for immediate effectiveness.

p Such a challenge can be initiated by a motion by the recipient of the order to set aside the immediate effectiveness of the order.

A motion to set aside immediate effectiveness must be based on one or both of the following grounds:

the willful misconduct charged is unfounded or-the public health,-safety or interest does not require the order to be made immediately effective.

No other ground for challenge is permitted inasmuch as no other. ground is relevant.

The motion must set out specitically its supporting reasons and must be accompanied by any necessary affidavits providing the factual basis for the request.

The added provision also specifies that a motion to set aside the immediate effectiveness of an order will be decided promptly by the presiding officer (an atomic safety and licensing board or an administrative law judge as designated by the Commission) before the presiding officer takes up any other matter not necessary to the resolution of that request.

To assure. prompt decision, the provision establishes rapid times for action i

by the parties as well as by the presiding. officer.

It is expected that the presiding officer normally will decide the question of immediate effectiveness solely on the basis of the order and other filings in the

-record. The presiding officer may cell for oral argument. However, an evidentiary hearing is to be held only it the presiding officer finds the record is in6dequate to reach a proper decision on immediate effectiveness.

Such a situation is expected to occur only rarely.

In deciding the quest 1on of immediata effectnene:<> under section 2.202

.s proposed herein, the presiding officer w111 apply an adeaucte evidence standard. This standard is analogous to the evidence necessary to fina 4

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probable cause to make an arrest, to obtain a search warrant, or to obtain a preliminary hearing on a criminal matter.

In a criminal enforcement

- context, "[pJrobable cause is deemed to exist where tacts and circumstances within aftiant's knowledge, and of which he has reasonably trustworthy information, are sufficient unto.themselves to warrant 4 man of reasonable t

caution to believe that an offense has been or is oeing committed."

United States v. Hill, 500 F.2d 315, 317 (5th Cir.1974).

In the context of the proposed' rule, adequate evidence is deemed to exist when facts and I

circumstances within the NRC staff's knowledge of shich it has reasonably trustworthy information are sufficient to warrant a person of reasonable' caution to believe that the charges of willful misconduct, if any, contained in the order are true and/or that the action specified in the order is necessary to protect the public health, safety or interest.

The Commission believes that the " probable cause" standard, adapted as the adequate evidence standard for use in the Commission's proceedings involving challenges tn the immediate effectiveness of orders, serves the public interest. Commission orders of ten oeal with willful misconduct or other circumstances thet threaten harm to the public health, safety or interest.

In some instances, the threat may be imminent.

In other instances, while no violation may be involved, information available to the Commission may indicate the need for certain immediate action to provide reasonable assurance that the public health, safety, and interest will be protected.

In all cases, it is imperative that the Connission be able to

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take whatever measures that may be necessary to protect the public health, safety, and interest. The adequate evidence standard for deciding questions l

of immediate effectiveness enables the Commission to proceed with necessary l

5

4 protective action on the basis of reasonably trustworthy information withovt having to await the completion of a tuli hearing on the merits of the order.

At the same: time,_it provides the affected parties a measure of protection against forced _ compliance, before a hearing, with an order that is-insubstantially founded. The adequate evidence standard has been applied to-allow an agency to suspend persons from bidding on government contracts (and thus allowing the suspension to remain in effect for a reasonable period 3

without a hearing), where significant governmental interests are involveo and the risk of erroneous deprivation of an individual's interest is slight.

See Trar.sco Security Inc. v. Freeman, 639 F.2d 31r (6th Cir. 1981), cert.

denied, 454 U.S. 820 (1981-); Horne Brothers, Inc.,. Laird, 463 F.2d 1268, (D.C. Cir.1972). Those same considerations support adoptinn of the adequate evidence rule here.

The following example illustrates how the Commission intends that the adequate evidence standard will be applied. A common type of order directs a licensee to take or desist from taxing certain action because of an asserted willful violation of. a license or regulation. An affidavit by a cognizant NRC official that sets forth facts sufficient to lead a reasonably cautious persor, to believe that the asserted willful violation did occur is sutticient to sustain the inrediate effectiveness of the order. As another example, an order directs a licensee to take certain action because the Commission is in possession of information indicating that the ordered action is necessary to protect the public health, safety or interest.

-l Similarly, an affidavit by a cognizant NRC otticial that sets forth sufficient information to lead a reasonably cautious person to believe that i

the ordered ection is necessary to protect the public health, safety, or 6

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interest is sufficient to sustain the immediate effectiveness of the order.

This _ standard does not require evidence by persons with first hand knowledge of the facts of. the sort that would be required at the full' adjudicatory hearing. Nor does it call for a balancing of evidence between that provided by the NRC staff and that provided by the person seeking to set aside immediate~ effectiveness.

It is not a preponderance of the evidence test.

Rather, if the staff's evidence is sufficient to cause a person of reasonable caution to believe that the oroer is' properly founded, the presiding officer is regt. ired to uphold the immediate effectiveness of the order.

In this regard, the presiding officer must view the evidence presented in i

a light most favorable to the staff and resolve all inferences in the staff's favor.

The Commission intends that a motion to set aside the immediate effectiveness of an order will be the only mechanism for challenging i

immediate effectiveness. In the circumstance, a presiding officer will not entertain any motion to stay the immediate effectiveness ot.an order; nor will a presiding officer issue sua sponte such a stay.

In general, the Commission expects thot a motion to set aside immediate effectiveness will be decided within fifteen (15) days of the date of the Commission order designating the time and place of hearing.

A presiding officer's order upholding the imediate effectiveness of an order will constitute the final agency action on immediate effectiveness. A presiding officer's order setting aside immediate effectiveness will be referred promptly to the Commission for review and will not be effective pending further order of the Commission.

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The Commission's authority under section 2.202 to issue immediately effect:ve orders includes the authority to issue amendatory or supplemental orders that are immediately effective. Section 2.202 will remain the same in this respect.

If such an order is issued by the staff after a hearing has been ordered, the licensee or other person affected may move that the immediate eftectiveness of the amendatory or supplemental order be set-aside pending completion of the hearing on the merits. Such a motion will be given expedited consideration by the presiding officer and decided on the i

basis described above.

Notwithstanding the factors that call for expedited resolution of disputes arising out_of immediately effective orders, there may be instances-I when overriding public-interest considerations require delay in the proceeding on the merits. The revisions proposed herein to the earlier i

proposed section 2.202 include a provision allowing reasonable delays in the j

conduct of the proceedings on the merits wher+

ad cause exists. As an example of the kind of good cause warrantins, say, there may be a need for further investication by the Commission or the U.S. Department of Justice.

q In such instances, to allow the Commission to investigate further into the matter or the Department of Justice to undertake criminal investigation without prsjudice to possible prosecution of any discovered crime, it may be necessary to hold the hearing on the immediately effective order in abeyance i

for a reasonable period of time. The proposed revision to section 2.202 allows the Commission, either on motion by the staff or any other party, to delay the hearii.g in such cases, for such periods as may be appropriate in the circumstances.

The proposed revision, however, does not authorize delay in the proceeding on a motion to set asioe immediate effectiveness. The 8

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a 1

1 length of.a delay in the proceeding on the merits should be based on a balance of the competing interests involved.

See Logan v.' Zimmerman Brush Co., 455 U.S. 422, 434 (1982). Such a motion will i

be' expeditiously heard and decided, s-Environmental lapact:

Categorical Exclusion The NRC bas determined that this proposed rule is the type of action described in categorical exclusion 10 CFR 6L51.22(c)(1). Therefore neither an environmental impact statement nor en environmental assessment has been prepareo f or this proposed rule.

Paperwork Reduction Act Statement This proposeo 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.).

I h

_ Regulatory Analysis The existing regulations in 10 CFR 5 2.202 authorize the NRC, through l

its designated otticials. to institute a proceeding to modify, suspend, or revoke a license by service of an order to show cause on a licensee. The 1

regulations, as currently written, do not provide procedures for the NRC to take direct action against unlicensed persons whose willful miscondett causes a licensee to violate' Commission requirements'or plar.es in question reasonable assurance of adequate protection of the public health and safety, 9

~

1..

e although such action is authorized by the Atomic Energy Act of:1954, as amended.

On April 3,1990 (55 FR 12370), the Comission proposed amendments to make the Comission's Rules of Practice more consistent with the Comissiin's existing statutory authority and to provide the Comission with the appropriate procedural framework to take action, in appropriate rases, in order to protect the public health and safety. The proposed amendments also were to make clear the distinction between orders - e.g., directions to take or desist from taking certain actions - and demanos for information.

Only orders were proposed to be made immediately effective and subject to hearing, consistent with existing regulations. Neither the existing 1

regulations nor the proposed emendments, however, contained provisions requiring that any such hearing be conducted expeditiously. The amendments proposed by this rulemaking supplement the earlier proposal by adding provisions directing the expeditious conduct of any hearing on an imeciately effective order but allowing delays in the conduct of such hearings in certain circumstances where good cause for delay is shown, and establishing a separate, informal procedure for dealing rapidly with challenges to the immediate ettectiveness of such order.

The proposed rule corstitutes the preferred course of action and the cost involved in its promulgation and application is necessary and appropriate. The foregoing discussion constitutes the regulatory analysis for this proposed rule.

Regulatory Flexibility Certification i

l I

l l

10 l

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As required by the Regulatory Flexibility Act of 1980 (5 U.S.C.

605(b)J, the Commission certities that this rule, if adopted, will not have a'significant economic impact on a substantial number of small entities.

The proposed rule establishes the procedural machanism for dealing with orders that are made immediately effective. The proposed rule, by itself, does not impose any 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 Small Business Size Standards found in 13 CFR Part 121. Such obligations would not be created until an 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 does not involve any new provisions which would impose backt1ts as defined in 10 CFR 5 50<109(a)(1). Accordingly no backfit analysis pursutat to 10 CFR 6 50.109(c) is required for this proposed rule.

List of Subjects in 10 CFR Part 2 Administrative practice and procedure, Antitrust, Byproduct material,

- Classified information, Environmental protection, Nuclear materials, Nuclear power plants-and reactors, Penalty, Sex discr ination, Source material, l

Special nuclear materiel, Waste treatment ant disposal.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act cf 11

e 1974, as amended, and 5 U.S.C. 553, the NRC is proposing to adopt the following amendnents to 10 CFR Part 2.

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

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

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

2201,2231);sec.-191,asamended, Pub.L.87-615, 76 Stat. 409 (42 U.S.C.

2241): sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.

Sec. 2.101 elso' issued under secs. 53, 62,. 63, 81, 103, 104, 105, 68 4

Stat. 930, 932, 933, 935, 936, 937, 938, asamended(42U.S.C.2073,2092,

-2093,2111,2133,2134,2135);sec.114(f), Pub.L.97-425,96 Stat.2213, l

(42 U.S.C. 10134(t)); sec. 102, Pub. L.91-190, 83 Stat. 853 as amended (42 U.S.C. ~4332); sec. 301, 88 Stat.1248 (42 U.S.C. 5871). Sections 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 (42 U.S.C. 2239). Sections 2.200-2.206 also issued under secs.

161b, i, o, 182, 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.C. 2201(b)), (i), (o), 2236, 2282); sec. 206, 88 Stat. 1246 (42 U.S.C. 5846). Sections 2.600-2.606 also issued under sec. 102, Pub. L.

.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332). Sections 2.700a, 2.719 also issued under 5 U.S.C. 554 Sections 2.754, 2.7b0, 2.770, 2.780 also issued under 5 U.S.C. 557. Section '. 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 also issued under sec. 103, 68 Stat.

i 12

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936, as amended (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 and sec. 29, Pub. L.85-256, 71 Stat.- 579, as amended (42 U.S.C. 2039).

Subpart K also issued under sec.189, 68 Stat. 955-(42 U.S.C. 2239); sec. 134, Pub. L.97-425, 90 Stat. 2230 (42 U.S.C. 10154). Subpart L also issued ~

j undersec.189,68 Stat.955(42U.S.C.2239). Appendix A also issued under sec. 6, Pub. L.91-560, 84 Stat. 1473 (42 U.S.C. 2135). Appendix B also

. issued under sec. lu, Pub. L.99-240, 99 Stat. 1842 (42 U.S.C. 2021b et seq.).

2.

Section 2.202 is revised to read as follows:

5 2.202 Order.

(a) The Cormission may ' institute a proceeding to modify, suspend, or revoke a license or to take such other ection as may be proper by serving on the licensee or other person subject to the jurisdiction of the Commission an order that will:

(1) Allege the violations with which the licensee or other person.

subject to the Commission's jurisdiction is charged, or the potentially hazardcus cenditions or other facts deemed to be sufficient ground for the preposed action, and specify the action proposed; 13

(2) Provide that the licensee or other person must file a written answer to the order under oath or affirmation within twenty (20)' days of its date, or such other1 time as may be specified in the order; (3/ Inform the. licensee or other person of his or her right, within twenty (20) days of the date of the order, or such other tine as may be specified in the order, to demand a hearing on all or part of.the order, except-in a case where the licensee or other person has consented in writing to the order; (4) Specify the issues for hearing; (5) State the effective date of the order, and (6) Provide, for stated reasons, that the proposed action be immediately effective, pending further order, where the Commission finds that the public health, safety or interest so requires or that the violation or conduct causing the violation is willful.

(

(b) The licensee or other person to whom the Commission.has issued an order under subsection (a) must respond to the order by filing a written answer under oath or aftirmation.

The answer shall specifically admit or f

deny each allegation or charge made in the order, and shall set forth the matters of fact and law cn which the licensee or other person relies, and, if the order is not consented to, the reasons as to why the order should not 14

have been issued. Except as provided in (d) below, the answer may include a demand for a hearing.

(c)(1)

It-Lee answeF demand 6) a hearing is demanded, the Comission will issue an order designating the time and place of hearing.

If a hearing is demanded with respect to an immediately effective order, the hearing will be conducted expeditiously, giving due consideration to the rights of the i

parties.

(2) The licensee or other person to whom the Commission has issued an order may, in addition to deraanding a hearing, move to set aside the immediate effectiveness of the order. The motion shall state with particularity the reasons why the immediate effectiveness of the order should be set aside and shall be accompanied by affidavits or other evidence relied on. The Commission staff shall respond within (5' days of the filinn of the motion. The motion shall be decided by the presiding officer expeditiously before any other matter unnecessary to the disposition of the motion. The presiding officer shall' exercise its powers I

to regulate the conduct at the proceeding, including reducing the times specified in subpart G for particular actions, to assure expeditious consideration and disposition of the motion. During the pendency of the

[

motion or at any other tine, the presiding officer shall not stay the immediate effectiveness of the order, either on its own motion, or upon i

motion of the licensee or other person. The presiding officer shall uphold the immediate effectiveness of the order if it finds that there l-is adeouate evidence tn support innediate effectiveness.

15

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= An order upholding immediate effectiveness trill constitute the final agency action on immediate effectiveness. An order setting aside,_immediate effectiveness will be referred promptly to the Commission ~itself and will not be effective pending further order of the Comission.

.i 4

(3) Except as provioad in (2) above, the Commission may, on motion-by the staff or any other party to the proceeding, where good cause exists, delay the hearing on the immediately effee,tive order at any time for such periods as are consistent with the due process rights of the licensee and

'l other affected parties.

l (d) An answer 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 l

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proposed in the order. The consent of the licensee or other person to-whom

+

the order has been issued to the entry of a consent order shall constitute a waiver by the licensee or other person of a hearing, findings of fact and conclusions of law, and of all right to seek Commission and judicial review or to contest the validity of the order in any forum as to those matters which have been consented to or agreed to or on which a hearing has not been requested. The consent order shall have the same force and effect as an l

order made af ter hearing by a presiding officer or the Commission, and shall l.

be effective as provided in the order.

16

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If the order involves'the modification of a Part 50 1,1censee and:

e is a backfit,-the' requirements of i 50.109 of this chapter'shall be' -

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followed, unless'the licensee'has consented to the action required.

Dated at Rockville, Maryland, this day of 1990.-

j i

e For the Commission i

SAMUEL J. Chilk Secretary of the Commission 17

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)F f l' ENCLOSURE B

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i-NUCLEAR REGULATORY COMMISSION f-

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WASHINGTON, D. C. 20666

\\..... p t4 Enclosure B J

i The Honorable John B. Breaux, Chairman Subcomittee on Nuclear Regulation

'u Comittee on Environment and Public Works j

United States Senate Washington,'DC 20510

Dear Mr. Chairman:

- Enclosed.for your information are copies of a proposed rule to be published.

in the Federal Register.

o On April 3,1990, the Comission published in the Federal Register a proposed rule to revise the Comission's procedures in 10 C.F.R. Part 2

,i Subpart B, for issuing orders to include persons not licensed by the' Comission but who are otherwise subject to the Comission's jurisdiction.

The rulemaking was initiated to reflect more fully the Comission's existing statutory authority to issue orders then is presently the case, and to-clarify the -types of Comission orders to which hearing rights attach.

. The current rulemaking supplements the earlier proposed changes by proposing additional amendments to Subpart B.

These amendments are designed to-expedite the conduct of hearings involving imediately effective orders.

Sincerely, William C. Parler General Counsel

Enclosure:

As stated 1

cc: The Honorable Alan K. Simpson t

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Pbx T

12379 Feder:1 R:gistir / Vol. 55, No.'64 / Tunday, April 3,1990 / Proposed Rules 1

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s ned at weshington, DC., on March 29. -

suppLaesswTARY isercensAve:

court cases which deal with the scope of 1 s

tono.

Background

the general authority Congress has granted the Commission usually do so in The procedures to be followed by the a general discussion or in passing and gl Daniel Haley, A dm"' "' *t##'

Commission to initiste formal conclude that section 161 confers h

p1t Doc. so-7sn Filed 4-2-90t s:45 am) enforcement action are found ir. the uniquely broad and flexible authority on Commission's Rules of Practice set forth the Commission.See Power Reactor m ea,, wm in 10 CFR part 2, subpart B.These Dev. Co. v, International Union of Elec.

actions include notices of violation, fadio andMoch. Workers, AFL CIO,-

described in i 2.201, show cause orders, R7 U.S. 396 (1901): Connecticut Light described in i 2.202, orders to modify and Power Co. v. Nuclear Regulatory Nt,CLEAA REOULATORY licenses, described in i 2.204, and civil Cimm'n,673 F.2d 525,527, n. 3 (D.C. Cir.

COMMISSION penalties, described in i 2.205, 19u):New Hampshire v. Atomic Energy Until1983,with the exception of the Co/nm'n,400 F.2d 170,173-74 (1st Cir.

I 10 CFR Part 2 civil penalty procedm es in i 2.205, the 1961):Siegel v. Atomic EnerFy Comm'n, i

language in these procedures referred 400 F.2d 779,783 (D.C. Cir.1968): but ef.

RIN 3160-AD63 solely to licensees. At that time, it was Reyrolds v. United States,286 F.2d 433 -

recognized that the Commission's

. (9th Cir.1660)(interpreting section 1015 Revisions to Procedures To lasue regulations did not provide a procedural in detail and holding, in 16 context of -

Orders mechanism to issue a formal notice of the AEC's bomo issiing activities, that violation to an unlicensed person section 1811(3) authorized the AEC to Aossecy: Nuclear Regulatory (corporate or individual) who had take action to govern the activities of Commission.

violated Commission requirements. For private licensees and not the activities Acnosc Proposed rule.

example, by referring only to licensees, of the Commission itself; the court's use the procedores in i 2.201 did not address of the word " licensee"is dictum with suesesany:The Nuclear Regulatory issuing a notice of violation to a person regard to the term in the context of this Commission (NRC) proposes to revise who possessed radioactive material notice).

the Commission's procedures for issuing without a license in violation of Ceses analyzing the Federal orders to include persons not licensed Commission requirements or an Communications Commission's (FCC) by the Commission but who are

' unlicensed person who violated enabling statute, which, in many ways, otherwise subject to the Commission's provisions of to CFR part 21, which is analogous to the 1D54 Act, also ju;isdiction.The proposed revisions implements section 200 of the Energy support the principle that the would more accurately reflect the Reorganization Action of1974.

Commission's authority is broad in' Commission's existing statutory Consequently, the Commission amended scope. The Federal Communications Act authority to issue orders than is its regulations to pr.it the issuance of of 1934 (the 1934 Act) broadly authorizes presently the case.The proposed notices of violation to unlicensed the FCC to "make such rules and revision also would identify the types of persons who violated Commission regulations, and issue such orders, not Commission orders to which hearmg requirements. Changes were published inconsistent with [the 1934 Act), as may rights attach.

in the Federal Register on September 28, be necesssey in the execution of its DAtas:The comment period expires on 1983 (48 FR 44170) to amend i 2.200 functions",47 U.S.C.1541 (1982). This June 18,1990. Comments received after (Scope of subpart) and i 2.201 (Notice of provision is similar to section 1Bli(3) of this date will be considered if it is -

violation) to add the phrase "or other the Atomic Energy Act of1954, which pesctical to do so, but assurance of person subject to the jurisdiction of the authorizes the Commission to " prescribe consideration cannot be given except as Commission."

such rules, regulations, and orders as it to comments received on or before this As stated above, the provisions for may deem necessary to govern any

date, issulng show cause orders only address activity authorized pursuant to the aoonesses: Send written comments to licensees. In practice, the Co,rnmission

[ Atomic Energy Act of1954] * * 'in has fashioned orders to non.ucensees order to protect health and to m, lmize -

m the Secretary of the Commission, U.S.

Nuclear Regulatory Commission, where necessary to compel a person to

- danger to life or property * * '"42 cease unauthorized activities that would U.S.C. 2201(l)(3)(1982). A number of Washington, DC 20555, Attention:

Docketing and Service Branch.

require a license or to compel actions by cases have analyzed section 15411n Comments may also be delivered to the a former licensee with respect to its detail and determined that the FCC's Office of the Secretary, U.S. Nuclear activities previously under license. See orderin8 authority is necessarily broad.

Regulatory Commission, One White e.g., Michaelf. Dimun,54 FR 12704 See FederalCommunications Comm'n v.

Flint North,11555 Rockville Pike.

(March 28,1989); Pacific Armatechnica NationalCitizens Committee for '

Rockville. Maryland, between 7.30 a.m.

Corp.,48 FR 38356 ( Aug. 23,1983). The Broadcasting. 436 U.S. 775 at 793 (1978);

and 4:15 p.m. weekdays. Copies of any Commission's statutory authority to United States v. Storer Broadcasting coutments received may be examined issue orders, which is found in Section Co. 351 U.S.192 at 203 (1955); National and copied for a fee at the NRC public 101 of the Atomic Energy Act of1934, as Bmodcasting Co. v. United States. 319 Document Room,2120 L Street NW.,

amended. 42 U.S.C. 2201, is not limited U.S.190 at 190 (1943): Lincoln Telephone -

(Lower la <el), Washington, DC between solely to licensees. In fact, the and Telegraph Co. v. Federal the hours of 7:45 a.m. and 4:15 p.m.

Commission's AtomicEnergy Act Communications Comm'n,659 F.2d 1092 weekdays.

authority to issue orders is extremely (D.C. Cir,1981); American Telephone broad, extending to any person (defined and Telegraph v. Federal FOR FURTHER INFORMATION CONTACE in section 11s to include, e.g., any Communications Comm'n,487 F.2d 865 Mary E. Wagner, Office of the General individual, corporation, Federal, state (2d Cir.1973); CTE Sehice Corp. v.

Counsel, U.S. Nuclear Regulatory and local agency) who engages in FederalCommunications Comm'n. 474 Commission Washington, DC 20555' conduct within the Commission's F.2d 724 (2d Cir.1973); and Western Telephone: 301-.492-1683.

subject matter jurisdiction.The few Union Telegraph Co. v. UnitedStates.

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1 Federal Register / Vcl. 55, N2,64 / Tuisday, April 3,1990 / Propos;d Ruhs 123'n 3

267 F.2d 715,722 (2nd Cir.1959). It has effective action modifying, suspending, the Commission's power to define the been held that the FCC has authority to - or revoking a license should not be scope of its proceedings. See Bellotti v.

lasue orders under section 1541 to taken.The order affords a hearing with NRC, 725 F.2d 1380 (D.C. Cir.1983).

persons whether licensed or not. United regard to these actions. While section in order to avoid unnecessary.

Stoles v. Southwestern Cob /c. 392 U.S.

180 of the Atomic Energy Act provides duplication in the regulations,it is 157,180-81 (1968).

for the granting of a hearing in proposed that the current i 2.204, Section 1811 provides broad authority connection with proceedings to modify,

" Order for modification of license," be to issue orders as the Commission suspend, or revoke a license, neither the deleted from part 2. since procedures for deems necessary to govern any activity Act nor the Administrative Procedure modification of a license are included in authorized pursuant to the Atomic Act would require a hearing in proposed i 2.202. Proposed I 2.202(f)

En:rgy Act in order to protect the public connection with an order to show cause provides that if the action ordered by health and safety. Section 101b similarly which requires only the submission of the Commission constitutes a backfit of authorizes the Commission to issue information, but does not by its terms a part 50 licensee, the procedures.

orders to establish standards and modify, suspend or revoke a license.

described in to CFR 50.100 must be instructions to govern the possession The Act does not explicitly set out the followed.This provision currently and use of special nuclear material, form or requirements for an order to appears in the last sentence of I 2.204.

source material, and byproduct material. show cause.The Act does, however, Section 2.202 is also revised to As relevant here, section 1610 authorize the Commission to collect provide that if the licensee or other authorizes the Commission to order information pursuant to sections tote person to whom an order is issued reports as may be necessary to and o and the Commission may issue consents to its issuance, or the order effectuate the purposes of the Act.

show cause orders to implement this confirms actions agreed to by the Given this broad statutory authority,it authority.Section 182 of the Act licensee or such other person, such is appropriate to amend to CFR 2.202 to authorizes the Commission to request consent or agreement constitutes a have the procedural mechanism in place information from licensees and the waiver by the licensee or such other to issue orders, as necessary, to Commission has implemented this person of a right to a hearing and any unlicensed persons when such persons authority by promulgating regulations associated rights. Such orders will be have demonstrated that future control such as 10 CFR 50.54(f). Licensees immediately effective.This is not a over their activities subject to the NRC's subject to Commission requests under to departure from current Commission jurisdiction is deemed to be necessary CFR 50.54(f) or its equivalent in other practice, but merely conforms the or desirable to protect public health and parts of the NRC's regulations have no Commission's regulations to such safety or to minimize danger to life or hearing rights under the Act regarding practica. Section 2.202(d) also provider property c to protect the common these information requests.

that the licensee's or other person's deferv., and security. This amendment Accordingly, to clarify that hearing agreement to an order must be in weaid revise i 2.202 to establish that rl hts do not attach to mere "show writing.The addition of this provision is 8

mechanism both as to a licensee, as the cause" demands for information, the intended to minimize the possibility of current i 2.202 provides, and to any Commission proposes to separate its issuance of a confirmatory order (i.e., an person subject to the jurisdiction of the current provisions on orders to show order intended to confirm and bind a Commission. Such a person includes, cause from the Commission's general licensee to its commitments to certain but is not limited to, a person who held ordering authority contained in i 2.202.

actions) which does not accurately a license or who was otherwise engaged To avoid any confusion with orders reflect the agreement reached by the in licensed activities at the time of the under revised i 2.202, such actions will parties. Whether or not the licensee or conduct in question, but who no longer be called " demands to show cause" and other person consents to any order, a holds a license or is so engaged.

provisions concerning demands to show person adversely affected by an order l

in addition, the procedural mechan 6n c"se are set forth in a new i 2.204.

Issued under i 2.202 to modify, suspend for issuing orders to show cause.

Under the proposed rule, a demand to or revoke a license will be offered an i

renamed demands to show cause by this show cause will be issued only to opportunity for a hearing pursuant to l

rulemaking. to licensees and other require the submission of information. If section 189 of the Atomic Energy Act.

l persons would be set forth in a separate a demand to show cause is issued as consistent with current practice and the I

section in order to make it clear that the part of an order requiring action authority of the Commission to define l

right to a hearing does not attach at the pursuant to i 2.202, hearing rights will the scope of the proceeding on an l

time ofis%ance of a mere demand for be offered but only with respect to the enforcement order. See Bellotti v. NRC, information;i.e., a demand that a person provisions of the order requiring action.

725 F.2d 1380 (D.C. Cir.1983).The or licensee "show cause" why it should This revision to the regulations Commission will continue to publish not be compelled to take or refrain from governing orders changes the rule in orders in the Federal Register in certain action. Orders, including orders DoirylandPower Cooperotive, LBp accordance with current practice.

to show cause, currently are issued 26,12 NRC 307,370-72 (1980) and The existin8 l 2.202 vests authority to under section 161 of the Atomic Energy.

Consumers Power Company, CLI-73-36, issue orders in the Executive Director Ac: of 1954, as amended, which are 6 AEC 1082 (1973), by setting the point at for Operations (EDO), and various staff implemented by 16 2.202 (order to show which a " proceeding" begins for -

office directors. Currently, the rule limits cause), and 2.204 (order for modification purposes of triggering the adjudicatory the EDO's authority to issue orders to oflicense), in addition, civil penalty rights under section 189 of the Atomic emergency situationa. Existing i 2.204.

orders are issued under section 234, Energy Act to the point ofissuance of an vests authority to issue orders h1 the implemented by i 2.205 (civil penalties).

order compelling a licensee or other Commission, though this authority has l-NRC practice commonly has been to person to take or refrain from certain been delegated to staff officers.The.

Issue a single order, an order to show actions rather than the point where the revised rules consistently vest such.

cause, which requires that certain agency merely demands information to authority in the Commission, lea'ving it.

Information be provided to demonstrate show why no action should be taken.

to the Commission's laternal delegation why either a propcsed or immediately The change in practice is consistent with authority to delegate such authority to

1 12372 Federal Register / Vcl. 56, No. 64 / Tuesday, April 3,1990 / Proposed Rules others. This change will avoid the need An example of a situation in which it safety, although such action is~

j to amend the regulations each time the might be appropriate to issue an order to authorized by the Atomic Energy Act of title of one of the currently enumerated an unlicensed person is where an 1954, as amended.The amendments will officials is char.ged, and it will also employee of a corporate licensee might make the Commission's Rules of 1

remove the unnecessary limitation on willfully cause that licensee to be in Practice more coralstent with the the EDO's authority, violation of Commission requirements Commission's existing statutory 1

The Commission is retaining,in new such that the Commission does not have authority and provide the appropriate l 2.202(e), a provision that, upon a reasonable assurance that requirements procedural framework to take action,in finding that the public health, safety or to protect the public health and safety appropriate cases,in order to protect the

)

interest se requires or that the violation will be followet if that person continues public health and safety.The is willful, the proposed action may be to engage in activities licensed by the amendments also will make clear that rnade immediately effective, pending Commission. Depending on the hearing rights do not attach to demands further proceedings on the order. A circumstances in such cases, it might be to show cause, consistent with section i

similar provision appears in current appropriate to issue an order to such a 180 of the Atomic Energy Act of1954, as l 2.202(f) and i 2.204. Relief from the person to either prohibit the person from amended, and the Administrative requirements of an immediately being involved in activities licensed by Procedure Act.

l effective order, on the cther hand, may the Commission or require the person to The proposed rule constitutes the be sought under the relaxation provide prior notice t'o the Commission preferred course of action and the cost provisions contained in that order, or by before engaging in licensed activities.

involved in its promu!sstion and motion to the Atomic Safety and These types of conditions have been appIication is necessary and Licensing Board or the Presiding Officer used by the Commission in settlement of if a hearing has been requested.

litigation in accordance with to CFR appropriate. The foregoing discussion e gulatory analysis for The proposed rule also continues,in 2.203.See Edward Nines, fe, Medical

{onstitutes gs propos e.

i 2.202(fl, the beckfitting requirements Center,27 NRC 477, AIF88 2 (October of 6 50.109, including the provision 7* 1988), and Finlay Testin8 Regulatory Flaxibility Certification Laboroforses, Inc., LBP-86-17,27 NRC therein that when immediately effective As required by the Regulatory action is requircd, the documented 580 (1988 This ru emaking establishes the Flexibility Act of 1980 (5 U.S.C. 005(b)),

4 evalu tion may follow, rather than procedures to be used in issuing orders the Commission certifies that this rule,if to licensed and unlicensed persons.The adopted. will not have a significant F nal, co sie t i h t e hanges to procedures establish the mechanism to economic impact on a substantial II 2.202 and 2.204, t 2.1 is amended to provide notice of the issuance of an number of small entities.The proposed specify that the scope of part 2 includes rder aua to resolve, through rule establishes the procedural the issuance of orders and demands to adjudication. whe ter a particular order mechanism to issue orders and demands show cause to unlicensed persons, and is appropriate under the circumstances.

to show cause to unlicensed persons in t 2.700 is amended to specify that addition to hcensed persons, who were subpart G (Rules of General EnvironmentalImpact: Categorical previously covered. The proposed rule, Applicability) applies to all Exclusion ntitfc includ ng any adjudications initiated by an order.

The NRC has determined that this li sti o

The pro osed amendments are proposed rule is the type of action regulated entities that may fall within procedur in nature.They do not described in categorical exclusion 10 the definition of small entities" as set

'h s0

[ndlon 1jN CFR 51.22(c)(1).Therefore neither an forth in section 601(3) of the Regulatory nd w9 environmental impact statement nor an Flexibility Act, or within the definition issue an order to a licensed or en environmental assessment has been of "small business" as found in section 3 I'

prepared int this proposed rule, of the Small Dusiness Act.15 U.S.C. 832, posi g nYse a e r emaki g published simultaneously with this Paperwork Reduction Act Statement or within the Small Business Size Standards found in 13 CFR part 121, rulemaking, a substantive addition to its

%Is proposed rule contains no Such obligations would r.ot be created regulatMns in order to put unlicensed information collection requirements and until an order is issued, at which time persons on notice that they may be held therefore is not subject to the the person subject to the order would accountable for willful misconduct requirements of the Paperwork have a right to a hearing in accordance which undermines, or calls into Reduction Act of1980 (44 U.S.C. 3501 et with the regulations.

question, adequate protection of the seq.).

public health and safety. Once the Backfit Analysis proposed rules are in effect, consistent Regulatory Analysis with the Commission's statutory The existing rcgulations in 10 CFR This proposed rule does not involve authority, there will be procedural rules 2.202 authorize the NRC, through its any new provisions which would impose governing the issuance of an order or.

designated cfficials, to institute a backfits as defined in to CFR demand to show cause not only to a proceeding to modify, suspend, or 50.109(a)(1). Accordingly no backfit licensee, as currently provided, but also revoke a license by service of an order analysis pursuant to 10 CFR 50.109(c) is to an unlicensed person who will'ully to show cause on a licensee.The required for this proposed rule.

causes a licensee to be in violation of regulations, as currently written, do not List of Subjects in to CFR Part 2 Commission requirements or whose provide procedures for the NRC to take willful misconduct undermines, or calls direct action against unlicensed persons Administative practice and procedure, into question, the adequate protection of whose willful misconduct causes a Antitrust, Byproduct material Classified l

the public heal $ and safety in licensee to violate Commission information. Environmental girotection, f

connection with activities regulated by requirements or places in question Nuclear materials, Nuclear power plants the NRC under the Atomic Energy Act of reasonable assurance of adequate and reactors, penalty, Sex 1954, as amended.

protection of the public health and discrimination. Source material, Special

, o I;

L

E Federal Register '/ Vol. 55, No. 64 / Tursd:y, April 3,1990 / Propos:d Rul:s 12373 cuclear material, Waste treatment and

' respect to any license, construction to all or some of the actions proposed in 4

disposal.

Permit, or application to transfer a the order.The consent of the licensee or

(

For the reasons set out in the license.

' other person to whom the order has (b) Is' suing oi :

show cause to 4 3d demands to ben issued to the entry of an order preamble and under the authority of the is subject to the shall constitute a waiver by the licensee Atomic Energy Act of1954, as amended.

Commission's b 'lon, including or other person of a hearing, findings of the Energy Reorganization Act of1974.

as amended, and 5 U.S.C. 553, the NRC licensees and persons not licensed by fact and conclusions oflaw, and of all the Commission:

right to seek Commission and judicial.

is proposing to adopt the following tmendments to 30 CFR part 2.

(c) Imposing civil penalties under review or to contest the valid"y of the section 234 of the Act and order in any forum as to those matters PART 2-RULES OF PRACTICE FOR (d) Public rulemaking.

which have been consented to or agreed DOMESTIC LICENSING PROCEEDINGS

3. Section 2.202 la revised to read as to or on which a heatmg has not been follows:

requisted. The order shall have the 1.The authority citation for part 2 is same force and effect as an order made revised to read as follows:

l 2.202 Orfors.

after hearing by a presiding officer or Authority: Secs.161,181. 68 Stat. 948. 953.

(a) The Commission may institute a the Commission, and shall be effective as amended (42 U.S.C 2201. 2231); sec.191. as proceeding to modify, suspend, or as provided in the order.

amended. Pub. L 87-015. 76 Stat. 409 (42 revoke a heense or to take such other U.S.C 2241) sec. 201, as Stat.1242. as action as may be proper by serving on (e) When the C< mmission finds that amended (42 U.S.C 5841); 5 U.S.C 552.

the licensee or other person subject to the public health, safety, or interest so Sec. 2.101 also issued under secs. 53. 62. 61 the jurisdiction of the Commission an requires or that the violation or conduct causin8 the vic,lation is willful

the order 81,103.104.105, 68 Stat. 930. 932. 931935.

order that will-'

may provide, for stated reasons, that the 836 837 938, as amended (42 U.S.C 2073.

(1) Alle.ge the violations with which 2002. 2093. 21:1. 2133. 2134,2135); sec.114lf).

the licensee or o Proposed action be immediately Pub. L 97-425. 98 Stat. 2213. as amended (42 the Commission,ther person subject toeffective pending further order.

U.S.C 10154(r)h sec.102. Pub. L 91-190. 83 s jurisdiction is Stat. 853, as amended (42 U.S.C 4332h sec.

charged, or th= olentially hazardous (f)If the orderinvolves the 301, as Stat.1248 (42 U.S.C 5871). Sections conditions or ot er facts deemed to be modification of a part 50 license and l's a 2.102, 2.103, k.104. 2.105, 2.721 also issued sufficient ground for the proposed backfit, the requirements of I 50.109 of under secs.102.103.104.105.183,180. 68 Sta t.

action, and specify the action proposed:

this chapter shall be followed, unless 936. 937,938,954. 955, as amended (42 U.S 0.

(2) Provide that the licensee or other the licensee has consented to the action 2132.2133.2134,2135,2233,2239). Section person must file a written answer to the required.

It (WSN3 tfonY2I2{

rder under oath or affirmation within

4. Section 2.204 is revised to read as 2.2no also issued under secs.161b. L o.182.

twenty (20) days ofits date, or such follows:

186, 234, os Stat. 946-951. 955. 83 Stat. 444, as other time as may be specified in the amended (42 U.S.C 2201(b), (i) (o). 2238, order:

2282) sec. 206. 88 Stat.1246 (42 U.S.C 5848).

(3) Inform the licensee or any other (a) The Commission may issue to a Sections 2.000 -2.800 also issued under sec.

person adversely affected by the order licensee or other person subject to the 102. Pub. L 91-190. 83 Stat. 853, as amended of his or her right, within twenty (20) jurisdiction of the Commission a (42 U.S.C 4332). Sections 2.700a. 2.719 also days of the date of the order, or such issued under 5 U.S.C 554 Sections 2.754, demand to show cause why such actions 2.560. 2.770,2.780 also issued under 5 U.S.C other time as may be specified in the as may be proper should not be taken, 557, Section 2.764 and Table sA of Appendix order, to demand a hearing on all or cart which wlll-i C are also issued under secs.135.141 Pub. L of the order, except in a case where the e%425. 98 Stat. 2232. 2241. (42 U.S.C 10155, licensee or other person has consented (1) Allege the violations with which 10121). Section 2.790 also issued under sec.

In writing to the orden the licensee or other person is charged, 103. 68 Stat. 936, as amended (42 U.S.C 21331 (4) Specify tha issues for hearing; and or the potentially hazardous conditions and S U.S.C 552. Sections 2.800 and 2.808 also (5) State the effective date of the or other facts deemed Io be sufficient issued under 5 U.S.C 553. Section 2.809 also order.

ground for the proposed action, and Issued under 5 U S.C 5.53 and sec. 29. Pub. L (b) A licensee or other person to specify the action proposed: and 85-256. 71 Stat. 579, as amended (42 U.S.C 2039). Subpart K also issued under sec.189, whom the Commission has issued an (2) Provide that the licensee or other 68 Stat. 955 (42 U.S.C 2:39h sec.134. Pub. L order under this section must respond to person must file a written answer to the th6 order by filing a written answeer demand to show cause under oath or Su p rt also l u un e 8. 8 Stat.

under oath or affirmation.The answer affirmation within twenty (20) days of 955 (42 U.S.C 2239). Appendix A also issued shall specifically admit or deny each its date, or such other time as may be under sec. 6. Pub. L 91-500. 84 Stat.1473 (42 allegation or charge made in the order, specified in the demand to show cause.

U.S.C 21351. Appendix D also issued under and shall set forth the matters of fact (b) A licensee or other person to sec.10. Pub. L 99-240. 99 Stat.1842 (42 U.S.C and law on which the licensee or other whom the Commission has issued a 2021b et seqJ person telles, and,if the order is not demand to show cause under this

2. Section 2.11s revised to read as consented to, the reasons as to why the section must respond to the demand by follows:

order should not have been issued.

filmg a written answer under oath or 32.1 Scope.

Except as provided in paragraph (d) of affirmation. The answer shall this section, the answer may demand a specifically admit or deny each This part governs the conduct of all hearing.

allegation or charge made in the demand proceedings, other than export and (c)If the answser demands a hearing.

to show cause, and shall set forth the import licensing proceedings described the Commission willissue an order matters of fact and law on which the in part 110. under the Atomic Energy Act designating the time and place of licensee or other person relies.

t,f 1954, as amended, and the Energy hearing.

(c) An answer may consent to the' l

Reorganization Act of1974, for:

(d) An answer may consent to the entry of an order in substantially the (a) Granting. s uspending. revoking.

entry of an order in substantially the form proposed in the demand to show amending, or taking other action *vith form proposed in the order with respect l

cause.

l l

I i

lm,

[n j

l t 1 t

Federal Register / Vcl. 65. N2,64 / Tu:sday, April 3,1990 / Propoord Rths

~

12374 l

(d) Upon review of the answer filed adequate protection of the public health NRC or Agreement State-licensed f acility, of ten without the knowledge of j

pursuant to paragraph (a)(2) of this and safety.

section, or if no ar.swer is filed, the OATas:The comment period expires the NRC or knowledge by the new Corunission may institute a proceeding June 18,1900. Comments received after employer of the employee's prior pursuant to10 CFR 2.202 to take the this dats will be considered ifit is conduct. The Commission hee also action proposed in the demand to show - practical to do so, but assurance of noted that willful acts of licensees

contractors, vendors, or their employees

. cause or to take such other action as consideration is given only for have caused lloensees to be in violation may be proper, comments filed on or before that date, i.

of Commission requirements.'Ibe

5. Section 2.700 is revised to read as Aponsesse: Mall written comments io:

Commission beheves that additional follows:

Secretary, U.S. Nuclear Regulatory enforcement options are needed to Commission, Washington, DC,20555, address direcuy persons who are not 4,

II # ***

Attention: Docketing and Service themselves licensees, but Pre or have The general rules in this subpart Branch. Deliver comments to One White been engaged in licensed activities and govem procedure in all adjudications Flint North 11555 Rockville Pike, whose willful misconduct, directly or I

initiated by the issuance of an order Rockville, klaryland 20852, between 7:45 Indirectly, causes a licensee to be in pursuant to 12.202, an order pursuant to em had 4:15 pm Federal workdays.

. violation of a Commission requirement i 2.205(e) a notice of hearing. a notice of Coples of comments received may be or places in question the NRC's proposed action issued pursuant to examined at the NRC Public Document reasonable assurance of adequate i 2.105, or a notice issued pursuant to Room,2120 L Street NW,(lower Level),

protection of the public health and

- f t 2.102(d)(3).The procedure applicable Washington.DC.

safety," Licensed activities," as used in to the proceeding on an application for a poet runTusa wesonesAnoes coerTACT.

this rule, includes those actions that license to receive and possess high level James Lieberman, Office of enable a licensee to carry out its radioactive waste at a geologic Enforcement, U.S. Nuclear Regulatory license.'

repository operations crea are set forth Commission, Washington, DC 20555, With the Commission's jurisdiction, in subpart j of this part.

telephone: (301) 492-0741.

that encompasses all of those activities Dated at Rockville, Maryland. this 2sth day suPPLasisNTAnY INPone4ATioet Over the that a licensee or its contractors, of March two.

years, the Commission has in most cases employees, or other agents perform to J

For the Nuclear Regulatory Conunlesion.

issued licenses to organizations rather Samuel 1. CMik, than Individuals.Likewise, the perWt the licensee to carry out activities licensed by the Commission in j

Secretary ofthe Cominission.

Commission's enforcement program accordance with Commission IFR Doc.9044e9 Filed 4-240; 8.45 am) holds the licensees responsible for not requirements, whether performed on or a

only the conduct of operations, but also off site.

sumn coos nemas

~

for the cor. duct of their employees, consultants, or contractors. Until now, Accordingly, the Commission is j

10 CFR Parts 30,40,50,60,61,70,72, enforcement actions concerning persons proposing to amend its regulations to 110 and 150 who have willfully caused violations of put on notice all those who are engaged Commission reqdrements or otherr<ise in any manner in activities subject to the RIN 3150 AD38 have engaged in willful misconduct in Commission's jurisdiction that they may connection with licensed activities be subject to enforcement actio,n for Willful M6sconduct by Unlicensed consisted of actions against licensees, willful misconduct that causes a p*"*

including Notices of Violations, civil licersee to be in violation of any rule.

AosNev: Nuclear Regulatory penalties, and orders modifying the regulailon, or order issued by the Commission.

license to direct removal of the Commission, or any term, condition, or individual from licensed activities at the limitation, of any license issued by the AcvioN: Proposed rule, licensed f acility where the violation Commission." The proposed change suuuAny:%e Nuclear Regulatory occurred, or orders confirming that the makes any person who violates this Commission (NRC)is proposing to licensee has removed an individual from requirement subject to enforcement revise its regulations to put unlicensed licensed activities, These actions only action in accordance with the persons on notice that they may be indirectly reach an individual.

procedures of10 CFR part 2 subpart B, subject to enforcement action (1) for These instances of willful misconduct nat subpart provides fo latuance of willfully causing a licensee to violate on the part of unlicensed individuals Notices of Violation.,ivil pei.31tles, and any of the Commission's requirements have caused NRC to have reduced orders.

or (2) for othee willful misconduct that confidence that all of these individt.als

%se chanys will allow the (a) arises out of activities within the would conduct licensed activities in a Commissior so utilize the fullrange of jurisdiction of the NRC and (b) places in manner that adequately protects public enforceme it sanctions,where question the NRC's reasonable health and safety This conduct has wanantes against any person willfully assurance that licensed activities will be included deliberate violations of NRC violatirp causin; a violation of conducted in a manner that provides requirements, falsification of records, Commission requirements. This would adequate protection to the public health false statements to the NRC, and hiclude licensee employees, vendors, an? safety.The proposed rule would interfering with an NRC investigation, as contractors, and consultants, and their subject a person who engages in that well as other forms of wrongdoing. After employees, and other agents of conduct to enforcement action under becoming aware of such conduct, a licensees.The Commission emphasizes existing regulations,This proposed rule licensee may dismiss the employae that, by taking action against these will enable the Commission to better either by its own decision or because

_ persons,it does not intend to diminish address willful misconduct that places the NRC formally orders removsl of the the responsibility of a licensee for the in question the reasonable assurance employee from licensed activity.

that licensed activities will be flowever, the wrongdoer may seek other heed ecuvay es d mmwen e conducted in a manner that will prov:de employment in the same field at another broad tenn. coextensive

l 1, i

Federal Register / Vol. 55, No 64 / Taeeday. Aprt 3, ingo / propond %

g conduct of its employees and therefore.

licensed activities weald cease the staff litigation in accordamae with 38 CFR cs appropriate.the Commission also will to lose its confidence that there is a 1.203.EdwardRines,fr. Afedios/Cender, be taking action against the hcensee ceatonable assurunee thatlianased A14 an-2, as NRC 477 (1986L and Firdoy -

directly, activities will be condaoted in Testing Laborotaries, /ne,13P4847. 27

%e proposed regulation 6 focas on accordance with the Cosamission's NRC Ses0988).

3 willful misconduct. A violation is willful requiremerrts. and (t) the NRC believes As a supplement to an order to c-if an individualeither knew that the that is has suffic6ent evideree to prove individual, the Comadesion might also conduct was prohibited or showed a by a preponderance of the evidence that order the facihty licensee to reanove the careless disregard for whether the wrongdoing occorred individual from licensed activities. This c nduct was prohibited. Careless A situationin whichit mightbe would provide additional assurance that disregard has been described as a appropriate toissue an order to an the individualis actually removed. If the showing of disregard for a governing unlicensed individualle the case of an licensee has already removed the statute or an Indifference to its employee of a licensee willfuBy caustng wrongdoer,85 NRC ocund inaus an requirements.Trons WorldAirlines,Inc. thatlicensee to be inviolation of order to the heee confirming the

v. Thurston. 489 U.S.11t (1985): U.S. v.

Commission requirements. As a result of removal and quiring the licensee to Illinois Cerdrolftallroad Co. 303 U.S.

that indMdaars action, the Commission notify 6e NRC if the heensee desires to 139 (1938). In the Commission's might nolonger have reasonable use the individual in licensed acuvities statement of considerations for the final assurance that requirements necessary in the future, and to peedde the basta rule onCompleteness and Accuracy of to protect the public heehh and cafety for doing so.These orders could also information (52 FR 4936245; December would be followed if thatindMdoal direct thelicensee to advies any 31,1967) the Commission noted that were imnunue to engagein activities prospective employer conducting

~ winful conductincludes " careless withr the Commission's jurisdiction, licensed actMties, who inquires about disregard"in that it " connotes a Antd er example when an order to an the past employment of the wroottdoer, recklass regard or calloos * *

individual might be appropriate is the of the issuance and publication of the indiference toward one's case of an unlionsed individualwho removing or confirming order.These responsibilities or the consequences of wulfully provides an inspector, latter requirements may be appropriate ene's actions? The NRC's Enforcement investigator, or other NRC etnployee because, while the NRC has preferred Policy,10 CFR part 2,.ppendix C, with inaccurate orlucomplete not to beinvolvedin licensees

GeneralStatement of Policy and information on a matter material to the employment decisions,it has become Procedure for NRC Enforcement r.ommission's regulatory apparent that heensees need more Actions, states that

willfulness * *

asponsibilities. Additional examples complete Mckground information about embraces a spectrum of violations include a supervisor who discharges an prospective employees to make better r:n8in8 from deliberate intent to violate employee for raising safety concerns, a employment decisions.in some or falsify to and including careless company ofDcer who directs employees instances, checking previous disregard for requirements? A finding of to provide false information to the NRC, employment can be thwarted because careless disregard indicates that the an employee who falsifies records of employers are often reluctant to divulge person acted with reckless indifference required information, or an employee to prospective employers any to the requirement, or with disregurd (or who willfully defeats alarms that have derogatory information about former utter unconcem)of the consequences or safety significance.

employees, due to state laws and fear of whether there was compliance.This Depending on the circumstances of tort liability, Simnar restrictions have tecklessness involves, at a minimum, an these types of cases,it mightbe been adoptedin a nnal rule of the unconcem as to whether a requirement appropriate to lasue an order to the FederalRauroad Administration,54FR was or wul be violated, er a situation in individual euber prohibiting the 42M (October 18,1989).

which an Individual blinds himself or individual from being involved in NRC Additional examples of potential huself to the reahties of whether a licensed activities, conditioning the application of the proposed rule include violation has occurred er win occur.

Individuars involvement in those companies that provide testing services This contrasts with violations caused by activities, or requiring the individual to and whose employees willfully supply simple error, misjudgment, provide prior notice to the Commission false data to a licensee in an effort to miscalculation, ignorance, or confusion before engaging in licensed activules in prevent thelicensee from being in on the part of the individual, the future.The provision for prior notice violation of 10 CFR part 50, appendix B, in most cases, taking action directly would permit the Commissionto vendors whose willful false certification against the licensee should be sufficient evaluate whether it needs toissue an causes a licansee to acquire components for conduct that does not involve additional order to prohibit or condition that do not meet license requirements, wrongdoing. that is, conduct that does the individuars involvement inlicensed such as the ASME code, where required; not rise at least in the level of careless aethities or to determine whether and companies that supply components disregard. flowever, this focus on wiuful increased inspection effort is needed.in or other items knowing that they do not misconduct in the proposed regulations addition, the order might require the comply with their certificates of should not be construed to condone individual to inform future employers compliance, in these cases, depending negligent conduct by a person that licensed by the Commisalon of the on the circumstances, en order might be causes a violation. In cases involving existence of the order.This would issued Whe contrador or vendor, negligent conduct, action against the provide some assurance that, should the prohibiting u.: of a service, product, or individualis more appropriately individual be employed to perform component la hcensed activnies, or to handled within the licensee's remedial licensed activities in the future, the new the employee who had willfully

program, employer would be aware of the committed the misconduct, prohibiting Cases addressed in this rulemaking individuars past conduct and ensure that employee's involvement in licensed where orders are issued are significant that appropriate oversight is in place, activities, matters in which (1) the staff concludes Some of these conditions have been The Commission also recognizes that that the person's involvement in used by the Commission in settlement of certain misconduct may not be a

,.h

,r 11 1,,

FedeEal Register / 'Vol. 65, No. 641 Tuesday, Afiril 3,1990./ Prapn=d Rules 22371 3'

the Commission intends to estabitsh a directly against ordicensed indMduals and flesible authertty as the system of records that willinclude a fist by order or cMI penahy or insaing a Commission. See Power Reactor Der.

l tI all persons currently subject to an civil penalty in the case of a licensed Ca.v.internetionalUniaa efElac, Aodio order that affects their partictpation in reactor operator pursvent to 10 CPR part and Moch. Werkets, AFT C/O,167 U.S.

licensed activities. Alist and copies of 55.* Prior notice wiR be given to the

~

396 (1981): Connecucar uphs and ibner (11 currently effective orders will be sent Commissica on Notices of Violation Co. v. Nucteer Regwietor) Comin'a, m3 to all power reactorlicensees twice a

zithout ctv A penalties that t e issued to F.2d 525,527.nJs (DC Cir.198:4Near year.'The list, with copies of orders, wift unlicensed indMdoels and actions liampshire v. Afamic Energy Comm's, be made available to other heensees taken against other unlicensed persons, 400 F.2d 170.173 74 (1st Cir.19eek Siersi cnd members of the public on request such as corporations or partnersidps.

v. Atomic Energy Camm'n. 400 F.2d 77s.

The Commission believes that these Enfomement actions against tmlicensed 783 (DC Cir.1968h hof ef. Reynolds v.

cet]ons will provide greater assurance persons, as with other NRC enforcement United States. 286 F.2d 433 teth Cir.

that ficensees will be aware of persons actions, require the exercise of 1900)(interpreting section 1611 in detall who have been the subject of an NRC discretion and wili be taken dependent and holding. In the context of the AEC's enforcement order,'fhese actions should on the circumstances of the case, bomb testing activities, that section provide istter accountability for At the time of final alemaking on 161l(3) authorized the AEC to take employees, consultants, contractors, and these matters, the Commission also action to govern the activities of private vendors in the nuclearindustry aed intends to modify its Enforcement licensees and not the actMties of the increase their responsibility and thus Policy 10 CfB part 2. appendix C, to Commission liscif; the court's use of the improve the quahty of performance, and address enforcement actions against therefore, the protection of the public unlicensed persons.The Policy will be word " licensee"is dictum with regard to health and safety. We of these orders clarified to provide that when the NRC the termin the context of this notice).

should also serve as an effective proposes to take escalated enforcement Casea analyzing the Federal deterrent to wmngdoers and inadvertent action against an unlicensed person, an Communicatione Commission s [FCC) employment of wrongdoers throughout enforcement conference will normally pnabling statute, which,in many ways, the regulated industry. Adoption of be held with that person. The Policy ia analogous to the Atomic Energy Act.

theseproposed ragulations will not alter does not now provide for the amount of also support the principle that the the NRC's procedures for referring civil penalty that may be assessed Commission's authority is broad in certain alleged or suspected criminal vendors, contractors, or individuals who scope.The Federal Coainunications Act violations of the Atomic Energy Act to are subject to civil penalties. Therefore, of 1934 (the 1934 Act) broadly authorizes the Department of justice for Table 1 A of the Policy will be modified the FCC to "make such rules and appropriate action, to include vendors and contractors with regulations, and issue such orders, not it would be an erroneous reading of

" industrial users of material," and inconsistent with lthe 1934 Act), as may the proposed regulations to conclude "other individuals subject to NRC be necessary in the execotton of its that conscientious people may be jurisdiction" will be included with functions," 47 U.S.C.1541 (1982).This subject to personalliability for mistakes. "Other materiallicensees." The provision is similar io section 1011(3) af

'the Commission realizes that p ople Commission abo intends to include in the Atom:c Energy Act of1954, which may make mistakes while acting in good the Policy examples of when authorizes the Commission to " prescribe faltn. and enforcement actions directly enforcement action might be taken such rules, regulations, and orders as it against individuals are not te be used against individuals, similar to the may deem necessary to govera any q

for activities caused by merely negligent examples set out in this Statement of activity authorized pursuant to the conduct.These persons should have no Considerations. The Folicy will also

[ Atomic Energy Act of1954) * *

in fear ofindividualliability under this reflect that a per=on subject to an order to protect health and to nunimNe regulatior., as the rule requires.nat there enforcement order will be given a right danger to life or property * * *." 42 be willful misconduct before the rule's to a hearing and, as stated above.

U.S.C. 2201(l) (3) (1982). a number of sanctions may be imposed.The consultation with or prior notice to (he cases hase analyzed section 15411n Commission recopizes, as stated in Commission will be required.

detail and held that the FCC's ordering section E

Enforce:.mt Actions This rulemaking implements the autho:ity is necessarily broad.See involving Individuals." of the NRC Commission's authority under the

.Fedeml Communications Commission v.

Policy and Procedure for Enforcement Atomic Energy Act of 1954, as amended, National Citizens Committee for Actions: Pohey Statement.10 CFR part to issue regulaaons and orders to any Bmodcasting. 436 U.S. 775 at 793 (1978):

2, appendix C (1989). that enforcement person (defined in section 11s to include, - UnitedStates v. Storer Bmodcasting actions involving individuals are e.g., an individual, corporation firm or a Co 351 U.S.192 at 203 (1955); National significant actions that need to be Federal State or local agency) who Bmodcasting Co. v. UnitedStates. 319 closely controlled and judiciously engages in conduct affecting activities U.S.190 at 196 (1943): Lincoln Telephone applied.The Policy also states that within the Commission's subject matter and Telegmph Co. v. Federal action will not be taken against an jurisdiction. The few court cases that Communications Commission. 659 F.2d individual if the improper conduct was deal with the scope of the general 1092 (DC Cir.1981):American caused by management failures.

authority Congress has granted the Telephone and Telegmph v. Fedeml The NRC Enforcement Policy Commission usually do so in the general Communications Commission. 487 F.2d currently rettuires that all enforcement discussion or in passing and conclude 865 (2d Cir,1973); CTEService Corp. v.

cctions involving unlicensed individuals, that section 161 confers uniquely broad Fedem/ Communications Commission, and licensed Individuals pursuant to 10 474 F.2d 724 (2d Cir.1973); and Western CFR part 55 be approved by the Deputy

comahation woh itw commiumn does noe Union Tehyroph Co. v. UnitedStates.

Executive Director for Nuclear Materials predade the start from tains immed.aiety effectwe 267 F.2d 715,722 (2nd Cir.1959). f t.has

' j",'"d",,',7;",8$$,%[,**["*

been held that the FCC has authonty to Safety Safeguards, and Operations j

Support.The ataff will consult with the suspenens a ticene.na order $ns r.dio.ctw, issue orders under section 1541 to Commissicn before taking action sortes to tre renmnt.

persons whether licensed w not. United l

};

13378

> Federal Register / Vol. 55. Nocoe / Tuesday. April 3,1990 / Proposed Rules

~{

violation of a Commission requirement.

radiographer working independertly in violation of Commission requirements or

,' h '.

However, when that misconduct occurs the field as contrasted with a team places in question the NRC's reasonable In connection with licensed activities or activity at a power plant),

assurance that licensed activities will be l

ij reasonably reflects on the ability of the 5.The employer's response, eg.,

conducted in a menner adequate to l {

[

individual to safely undertake licensed = disciplinary action taken, protect the public health and safety.In a

. activities within the Commission's 6.The attitude of the wrongdoer, e.g.,

addition. Notices of Violation with civil f

jurisdiction and raises a serious admission of wrongdoing, acceptance of penalties will be authorized for willful question as to whether there is responsibility.

misconduct that causes a licensee to be f

reasonable assurance of adequate 7.The degree of management in violation of Commission

}

4 protection of the public health and responsibility or culpability.

requirements. While civil penalties will i

safety if the Wson continues to be

8. Who identified the willful not be available for willful misconduct j

5 involved in licensed activities, NRC misconduct.

that does not cause a licensee to be in

, should have the ability to issue an order The orders described above would be violation, civil nenalties are available t

to the person involved in the issued only for willful misconduct that for violations o'f all orders issued under l

t misconduct.Therefore, the Commission bears on the person's ability to carry out the rule.

is including in the propvoed rule a health or safety.related responsibilitias.'

- In sum, orders to unlicensed persons provision that states:In addition, the in most cases, the order would require may include requirements such as:

Commission may issue an enforcement the person to divulge the existence of r 1

1. A prohibition against any order 8 pursuant to 10 CFR part 2, the irder to a prospective employer or involvement in NRC licensed activities.

r subpart B. to address willful misconduct cust amer involved in licensed activities.

of persons that arises out of activities Ord, tarily, th'e Commission would generetly for a specified period of time, k

within the jurisdiction of the NRC and expect to provide a specific time limit

2. A prohibition against any I

places in question the NRC's reasonable for the provistou of the order, and a involvement in NRC-licensed activities

.[

assurance that licensed activities will be process for relaxation of the order.

until certain conditions are satisfied, conducted in a manner that provides These orders will be subject to the e.g., completing specified training or j' -

adequate protection to health and safety procedures and hearing rights of 10 CFR

3. A requirement to notify the NRC meeting certain qualifications.

of the public."This provision is intended part 2 '

to address cases in which the willful lasuance of the orders described before resuming work in licensed misconduct does no'. In itself constitute above would have the benefit of making activities.

or create a violation of Commission the NRC aware of the person's future

4. A requirement to tell a prospective requirements,4her because of the involvement in licensed activities for the employer or customer engaged in p

?

wordin([ of Le particular requirement time specified in the order, so that the licensed 'nctivities that the person has anMic& ole to the activity or because NRC may monitor that involvement as been subject to an NRC order.

[

NRC has not yet acted in an area. i.e.,

drug use by employees of a materials necessary. It will also provide future Orders to licensees who are I

licensee while engaged in licensed employers involved in licensed activity employers or former employers of the opportunity to make informed individuals subject to orders may activity.This willful miscor. duct nevertheless may raise concerns that employment decisions, provided that the include requirements such as:

cause the NRC to question whetner person complies with the terms of the 1.Removalof anindividualfrom there is reasonable assurance that NRC-order and informs the NRC and new I censed activity.

licensed activities, with that per:on employer, as required. lf the person does

2. A re uirement for retraining certain present, will be conducted in a manner

' not comply with the terms of the order, individua (s), as a condition of allowing that provides adequate protection to the the failure to do so, when identified, the person to continue in licensed activities health and safety of the public. In these could subject the offender to a civil cases, where there is a reasonable basis penalty or could be referred to the

3. A requirement to advise any P

for a regulatory concern, issuance of Department of justice for crimmal prospective employer who inquires prosecution.

about an individual of the existence of orders or demands to show cause might in a separate rulemaking published any order issued to the individual.

be appropriate pursuant to the proposed simultaneously with this rulemaking, the

4. A requirement to notify the NRCif revision to 10 CFR 2.202 and 2.204.

in deciding when to issue an Commission is proposing revisions to the employer rehires or restores the i

enforcement order, the NRC recognizes the Commission's procedures in to CFR individual to licensed activity, and to that judgments will have to be made on part 2, subpart B, to expressly provide state the basis for so doing.

a case by case basis.llowever,in for issuance of orders to persons not

5. A requirement for additiond making these decisions, the NRC will licensed by the Commission but who are oversight or independent verification of consider factors such as the following:

otherwise subject to the Commission's activities performed by the person,if the erson is to continue to be involved in

[$r' nar ly, requirements such as 1,The level of the individual within jurisdiction. Following promulgation of d a tivit!

the o anization.

this rulemaking and,the part 2 d

rulemaking there will be substantive T

a ety consequences o e and procedural rules governing the those listed above will be imposed for a specified period of time. A person 3.The benefit t the wrongdoer, e.g.,

de and not onfy o a licen r q e[t t$eNkC o e a personal or corporate gain, e

but also to an th or e r

currently provided'whose willful 4.The degree of supervision of the 8

unlicensed person provisions of the order. '

individual'm.e$itored or audited, and the f how closely is the mise nduct causes a licesee to be in Individual o Orders, including orders imposing likelihood of detection (such as a civil penalties, are published in the

'As ind cated in the text a separate rulemakins is

'The term " enforcement order" refers to an order onderway addressing procedures for issuing orders.

Federal Register and NUREG-0940, d rected to a person but which does rot impose a Under that proposal, a he6nng will not be provided (Enforcement Actions: Significant for a show cause demand txcause those demands Actions Resolved), and are also the ctva penalty require only a wntien response.

subject of a press release. In addition,

13378 Fedeen) Register / V:1, 65. No, M / Tuesday. April 3,1990 / Proposed Rules

' totes v, Southwestern Cable. 392 U.S, individuals who willfully cause a who may be hired by others in the 157 at 10H1 (1968).

licensee to be in violation of industry,without knowledge of the prior Section 1616 provides broad authority requirements because they are persons wrongdoing, or who are rehired by the to issue regulations as the Commission who violate the licensing provisions former employer,in those instances deems necessa j to govern any activity. enumerated in section 234. In cases where no order was issued.

authorised pursuant to the Atomic where the Commission issues an order The Commission is concerned about a Energy Act in order to protect the public (other than an order imposing a civil number ofincidents of willful health and safety. Section 161b similarly penalty) to a person based on willful wrongdoing in recent years in which it authoriser the Commission to issue misconduct that causes a licensee to be has been I mited in its ability to address regulations to impose standards and in violation of a Commission the problem directly or to have some instructions" on persons to govern the requirement or to a person whose willful control over the activities of the potsession and use of special nuclear misconduct,in the absence of a wrongdoer in the near term.While the material, source material, and byproduct violation places in question the NRC's number of cases of willful misconduct of materit', as may be necessary or reasonable assurance that licensed which the NRC is aware is not large, any desirable to pmCde for the common activities will be conducted in a manner number is unacceptable and the defense and security and protect the that provides adequate protection to the potential for injury is serious enough public health and safety, health and safety of the public, the order that the problem must be addressed.

Section 234 of the Atomic Energy Act would be issued,in part, pursuant to a The objective of the rule is to put authorizes the NRC to impose civil regulation (e.g. proposed i 50.5) that everyone subject to the Commission's penalties on unlicensed individuals, was promulgated under a licensing lurisdiction on notice that enforcement including those who conduct licensed provision of the Atomic Energy Act, and action, including civil penalties, migh t activities as employees of licensees, for a civil penalty would be evallable for be taken against them for willful violation of the NRC's substantive violations of such an order.in addition, misconduct in relation to NRC licensed requirements. Section 2M rebde as criminal sanctions under section 223 are activities. Under section 234 of the follows:

available for willful violations of orders Atomic Energy Act, the Commission

a. Any person who (11 vlotates any and regulations under section 161b and may impose civil penalties on licensing provision of section b3. 57,62. 63. 81,

l. tnjunctions are also available under employees of licensees and others who s2.101.103.104.107, or too or any rule, section 232 for violations of Commission willfully cause a violation of a reputation. or order issued thereunder, or any orders.

requirement. The Commission also anay d$c unIler, ri Environmentallmpactl Colegor/ col impose a civil penalty on a person who o

to en violation for which a hcense may be revoked Exclusion violates an order issued to that person f r wihful misconduct, absent a under uction las lot the tom Act). shall be ne NRC has determined that this subject to a civil penalty, to be imposed by proposed rule relates to enforcement viola, tion, that placed in question the NRC s reasonable assurance that the Commission. of not to exceed g100,000 for matters and, therefore, falls within the licensed activities will be conducted in a each such violation *

scope of 10 CFR 51.10(d).Therefore, The licensing provisions listed in neither an environmentalimpact manner that provides adequate section 234a generally prohibit the statement not an environmental protection to the public health and possession, use, receipt, or transfer of assessment has been prepared for this safety, because the order would be issued,in part, pursuant to a regulation nuclear materials or facilities unless proposed rule, that was promulgated under a licensing authorized by a license.The specific prohibitions are as follows: Section 57 PoPerwotA Reduction Act Statement provision of the Atomic Energy Act.The 63, and 81 prohibit persons from This proposed rule contains no enforcement actions that are taken, engaging in activiths that may be information collect!on requirements and including orders limiting activities of

=

licensed pursuant to sections 53,03,81 therefore is not subject to the wrongdoers in the future and civil i

and 82 unless those persons or their requirernents of the paperwork penalties, will serve as a deterrent to principals hold licenses that permit Reduction Act of 1980 (44 U.S.C. 3501 et others throughout the industry, those activities. Section 101 prohibits seq.},

The alternatives evallable to the Commission are to propose a rule, as is persons from engaging in activities regarding a production or utilization RegulatoryAnalysis done herein, or do nothing. Given the facility that the NRC licenses under The Nuclear Regulatory Commission frequency of these incidents, and the sections 103 or 104 unless those persons has statutory authority to issue potential harm to the public as well as hold licenses that allow those activities.

enforcement actions ogsinst unlicensed individuals working in NRC licensed Section 101 furths< requires that persons persons whose willful mis' conduct activales, the alternative of doing licensed under sections 103 or 104 causer a licensee to be in violation of nothing was rejeded. The benefits of conduct activities licensed pursuant to the Commission's requirements or taking enforcement action are similar to those sections in accordance with the causes the NRC to question its those of taking action againstlicensed

licenses, reasonable assurance that licensed entitles,in that a civil penalty and

%e proposed changes are made under activitka will be conducted in a manner attendant adverse publicity encourage the authority of 101b and I and the that provides adequate protection to future com pliance, the Notice of above-identified licensing provisions.

public health and safety. As presently Violation calls for precise response as to The proposed changes will prohibit written, the Commission's regulations do corrective action taken, and, an willful misconduct that causes a not specifically implement that statutory enforcement order,if obeied, may licensee to be in violation of authority and issuance of these orders.

directly control the involvement of an Commission requirements. By imposing in the past, the Commission has issued individual in licensed activity. The a direct prohibition on unlicensed orders to holders oflicenses directing effect of having these options available persons, the Commission wBl then be removal of w-ongdoers from licensed in the enforcemeat progthm should able to exercise its section 234 authority activities. llowever, this approach does reduce the probability of repetitive to impose civil penalties on unlicensed not satisfy concerns about wrongdoers violations by wrongdoers.

l l

1 1

Fedoest Register / W1. 65. N2,94 / Tuesday April 3,1990 / Proposed Rules 123N l

~

ne NRC does not anticipate that -- 1985). Obligetions would not be created - teference, intergovemmental relations, additionalinvestigettons will be until an order is issued, at which time Nuclear mate 7tals, Nuclear power plants -

necessary to implement the rule because the person subject to the order would -

and reactors. Penalty Reporting and it focuses on the results of have a right to a hearing in accordance recordkeeping requirements Scientific investigations.he NRC estimates that with the regulations.

equipment, 20 CPR Port 250 fewer than five cases per year will N#NUU T" Ilaaardous materials trans ortation.

actually result in enforcement action This proposed rul' does not involve -

Intergovemmentalrela' ions,f uclear

. being taken against unlicensed e

individuals.The cost 6 oreparing and any new provisions that would impose materials, Penalty Reporting and publishing a very few v.ditional actions backfits as defined in to CFR recordkeeping requirements. Security per year beyond the current workload of 50.109(a)(1). Accordingly, a backfit measures, Source material, Special handling of more than a hundred analysis pursuant to 10 CFR 50.109(c) is nuclear material.

escelated enfortement actions per year not required for this proposed rule.

For the reasons set out in the is not significant.

llowever, issuance of orders pursuant to preamble and under the authority of the The proposed rule will be this regulation mey involve backfit Atomic Energy Act of 1954. as amended, implemented by processing,in the same considerations, which will be addressed the Energy Reorganisation Act of 1974, manner as other escalated enforcement on a case-by-case basis.

as amended, and 5 U.S.C. 553, the NRC mic n c that me t t e a cy's List of Subjects is proposing to adopt the following amendments to 10 CFR parts 30,40,50, cttention.The Commission wift be 20 CFR fort 30 60,61,70,72,110 and 150.

consulted on actions that involve orders Byproduct material, Govemment or civil penalties against unlicensed contracts, Intergovernmental relations' PART 30-RULES OF QLNERAL individuals.The Office of Enforcement Isotopes. Nuclear materials, Penalty' APPUCAtluTY TO DOMESTIC will also maintain a list of those Radl6 tion protection, Reporting and LICENSING OF BYPRODUCT cnforcement or<iers applicable to recordkeeping requirements.

MATERIAL individual wrongdoers and distribute, JO CFR Part 40 twice a year to all power reactor Govemment contracts llazardous 1.The authority citation for part 30 ls licensees, a copy of the list of currently material transportation, Nuclear revised to read as follows:

effective orders that restrict Individuals materials, Penalty Reporting and Authcrity: Secs. st. at. tot,182.1as, t es. 68 from licensed activities and copies of recordkeeping requirements, Source stat. 935. 94a. 953,954. 955, as amended. sec.

those orders. The same material will be material. Uranium.

234 as stat. 444. as amended (42 U.S C 2111.

available to others who request it. The 20 CFR Part so 2112. um, n32 nas, use, na21: secs. 2m, cost of distributing this information is Aniltrust,Classifiedinformation Fire as amended. 202. 20s, as stat.1242. as negligible, protection, Incorporation by teference, amended,1244.1246 (42 U.S.C 6641,6642.

in light of the benefits of enabling tho inittgovernmentalrelations Nuclear 6646).

NRC to use its statutory authority to power plants and reactors, Penalty, Section 30.7 also issued under pub.1. 95-act, ecc. to. 92 Stat. 2951 (42 U.S C $851).

cadress directly the willful misconduct Radiation protectien, Reactor siting secuan 30.34(b) siso issued under sec.184. 08 cf unlicensed persons,it is appropriate criteria. Reporting and recordkeeping that the Commission adopt the proposed requirements.

$',Q*[*L"d*d),' U, d uE ebas rule.

20 CPR Part 60 Stat. 955142 U.S C 2237).

Ilish level waste Nuclear power for the purposes of sec. 223. se stat. 9sa, as Regulatory Plenbility Cert /fication plants and reactors Nuclear materials, amended (42 U.S C 2273): il 30 3,30.10.

In accordance with the Regulatory Penalty, Reporting and recordkeeping 30.34tbl. (c) and if). 30 4ttal and (c). and 30.53 Fl;xibility Act of 1980,5 U.S.C. 605(b),

requirements, Waste treatment and are issued under sec.1 b,sestat.94a.se the Commission certifies that this rule,if disposal.

erwnded l42 U.S C 2201(bil: l 30.10 is issued adopted, will not have a significant 20 CPR Part 62 under sec. tott, ao Stat. 949. as amended (42 economic impact on a substantial Low. level waste Nucleat materials, Es C nottill; and ll 30 a. 30.9. 30.38,30.51.

3032. 30.55, and 30.5e(b) and lel are issued rtumber of small entities.The proposed Penalty, Reporting and recordkeeping undet sec.1610,68 Stat. 950, as amended 142 rule puts unlicensed persons on notice requirements, Waste treatment and S.

22mlon that they may be subject to enforcement disposal.

action if they willfully cause a licensee 10 CPR Part 70

2. Ntion 30.1 is revised to read as 13 be in violation of Commission llazardous materials. transportation.

tollowo requirements or subject to an Material control and accounting, cnforcement order if their willful Nuclear materials, Packaging and I W Se0Pa.

misconduct places in question the NRC's containers, Penalty, Radiation This part prescribes rules applicable reasonable assurance that licensed protection Reporting and recordkee ing to all persons in the United States activities will be conducted in a manner requirements, Scientific equipment, '

governing domestic !! censing of cni safety.The proposed rule, by itself,.

Security measures Specialnuclear byproduct material under the Atomic adequate to protect the public health material.

Energy Act of 1954, as amended (08 Stat, does not impose any additional 20 CPR Port it 919), and under Title 11 of the Energy cbligations on entities, including any -

Manpower training programs, Nuclear Reorganization Act of1974 (68 Stat, regulated entitles, that may fall within materials, Occupational safety and 1242), and exemptions from the domestic the definition of "small entities" as set health Reporting and recordkeeping licensing requirements permitted by forth in section 001(3) of the Regulatory requirements, Security measures, Spent section 81 of the Act.This part also Flexibility Act, or within the definition fuel.

gis es notice, in i 30.10, to all persons cf "small business" as found in section 3 10 CPR Part 220 whose actions enable 6 ticensee tq carry (f the Small Dusiness Act.15 U.S.C. 632, Administrative practice and out activities licensed by the or within the size standards adopted by procedure, Classified information.-

Commission, including individuals, the NRC (50 FR 50241; December 29.

Export, import, Incorporation by corporations, and other entities, whether

ML20056B495

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Contact:

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Dear Mr. Chairman:

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ML20056B495

Text

SUBJECT:

Purpose:

Contact:

Enclosures:

SUMMARY

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Dear Mr. Chairman:

Enclosure:

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