ML20056B500
| ML20056B500 | |
| Person / Time | |
|---|---|
| Issue date: | 03/21/1990 |
| From: | Goldberg J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Meyer D NRC OFFICE OF ADMINISTRATION (ADM) |
| Shared Package | |
| ML19336C343 | List: |
| References | |
| FRN-55FR12370, FRN-55FR27645, RULE-PR-2 AD53-1-06, AD53-1-6, AD60-1-11, NUDOCS 9008280371 | |
| Download: ML20056B500 (49) | |
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UNITED STATES NUCLEAR REGULATORY COMMISSION
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MEMORANDUM FOR:
Davic L. Meyer, Chief Rules and Procedures Branch Division of Rules and Records Office of Administration FROM:
Jack R. Goldberg Deputy Assistant General Counsel for Enforcement Office of the General Counsel
SUBJECT:
IMPLEMENTATION OF COMMISSION ACTION:
PROPOSED REYlSIONS TO 10 CFR PART 2 by memorandum dated February 21, 1990, the Secretary of the Conraission indicated that tha Comission (with all Comissioners agreeing) has approvec the proposed revisions to 10 CFR Part P.
Please implement tne Comission's action by arranging for publication of the enclosed proposed rule in the Federal Register al.owing 75 cays-for sublic coment. As provided in the February 21, 1990 SRM, publication of t11s rule should occur at the same time as publication of the proposed changes to 10 CFR which would hold unlicensed persons accountable for willful misconduct (SECY-90-22).
Enclosed is a markad-up copy of the Federal Register notice showing Comission-requested and other changes for transmittal to the 0ffice of the Secretary.
Also enclosed is a Congressional letter package for transmittal to GPA/CA and two copies of the public announcement for transmittal to GP /PA.
I i
Jack R. Gol rg Deputy Assistant General sel for Enforcement j
Office of the General Counsel
Enclosures:
1.
FR Notice and 2 Copies 2.
Marked-up Copy of FR Notice 3.
Congressional Letter Package 4
Draft Public Announcement g6 371 900821 1
2 55FR27645 PDR
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[7590-01) h0 CLEAR REGULATORY COMMISSION 10 CFR Part 2 RIN:
3150-A053 Revisions to Procedures to Issue Orders AGENCY:
Nuclear Regulatory Commission.
ACTION:
Proposed rule.
SUMMARY
- The Nuclear Regulatory Commission (NRC) proposes to revise the Commission's procedures for issuing orders to include persons not licensed by the Commission but who are otherwise subject to the Commission's jurisdiction.
The proposed revisions would more accurately reflect the Commission's existing statutory' authority to issue orders than is presently the case.
The proposed revision also would ideritify the types of Commission orders to which hearing rights attach.
DATES: The comment period expires on (75 days after publication in the FederalRegister). Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before this date.
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ADDRESSES:
Send written coments to the Secretary of the Comission, U.S.
Huclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Service Branch. Comments may also be celivered to the Office of the Secretary, U.S. Nuclear Regulatory Comission, One White Flint North,11555 Rockville Pike Rockville, Maryland, between 7:30 a.m. and 4:15 p.m. weekdays.
Copies of any corcents received may be examined and copied for a fee at the NRC Fublic Document Room, 2120 L Street, NW (Lotter Level), L'ashingten, DC between the hours of 7:45 a.m. and 4: 15 p.m. weekdays.
FOR FbRTHER INFORMATION C0tl TACT: 11ary E. Wagner, Office of the General Counsel, U.S. Nuclear Regulatory Comission, Washington, D.C. 20555 Te lepher,e:
301-492-1683.
SUFPLEMENTARY INFORMATION:
Background
The procedures to be followed by the Comission to initiate formal enforcement action are found in the Comission's Rules of Practice set forth in 10 CFR Part 2, Subpart B.
These actions include notices of violation, described in i 2.201, show cause orders, described in 6 2.202, orders to modify licenses, described in 6 2.204, and civil penalties, described in 6 2.205.
Until 1983, with the exception of the civil penalty procedures in
$~2.205, the language in these procedures referred solely to licensees. At that time, it was recognized that the Commission's regulations did not provide a procedural mechanism to issue a formal nctice of violation to an unlicensed
.' person (corporate or incividual) who had violated Comission requirements.
For example, by referring only to licensees, the procedures in i 2.201 did not address issuing a notice of violation to a person who possessed radioactive material without a license in violation of Comission requirements or en unlicensed person who violated provisions of 10 CFR Part 21, which implements Section 206 of the Energy Reorganization Action of 1974.
Consecuently, the Comission amer.ded its regulations to rmit the issuance of notices of violations to unlicensed persons who violated Commission requirements.
Changes werc published in the Federal Register on September 28, 1983 (48 FR 44170) to ameno i 2.200 (Scope of subpart) and 5 2.201 (Notice of violation) to add the phrase "or other person subject to the jurisdiction of the Commission."
As stated above, the provisions for issuing show cause orders only address licensees.
In practice, the Comission has fashioned orders to non-licensees where necessary to compel a person to cease unauthorized l
i activities that would require a license or to compel actions by a former licensee with respect to its activities previously under license.
See i
e.g., Michael F. Dimun, 54 FR 12704 (March 28, 1989); pacific Armatechnica Corp., A8 FR 38356 (Aug. 23, 1983). The Comission's statutory authority to issue orders, which is found in Section 161 of the Atomic Energy i
Act of 1954, as amended, 42 U.S.C. 2201, is not limited solely to licensees.
In fact, the Comission's Atomic Energy Act authority to issue orders is extremely broad, extending to any person (defined in Section 11s to include, e.g., any individual, corporation, federal, state and local agency) who engages in conduct within the Comission's subject matter jurisdiction.
The a
4 few court cases which deal with the scope of the general authority Congress has granted the Comission usually do so in a general discussion or in passing i
ano conclude that Section 161 confers uniquely broad and flexible authority on the Comission. See Power Reactor Dev. Co. v. International Union of Elec. Radio and Mach. Workers. AFL-CIO, 367 U.S. 396 (1961);
Connecticut Light and Power Co. v. Nuclear Regulatory Com'n, 673 F.2d 525, 527, n. 3 (D.C. Cir.1982); New Hampshire v. Atomic Energy Com'n, 406 f.2d 170,173-74 (1st Cir.1969); Siecel v. Atomic Energy Com'n, 400 F.2d 779, 783 (D.C. Cir.1968); but cf. Reynolds v. United States, 286 F.2d 433 (9th Cir.
196')) (interpreting Section 1611 in detail and holding, in the context of the AEC's bomb testine ectivities, that Section 1611(3) authorized the AEC to take action to govern the activities of private licensees and not the activities of the Comission itself; the court's use of the wo;d " licensee" is dictum with regard to the term in the context of this notice).
Cases analyzing the Federal Communications Comission's (FCC) enabling statute, which, in many ways, is analogous to the 1954 Act, also support the principle that the Comission's authority is broad in scope.
The Federal Cor.raunications Act of 1934 (the 1934 Act) broadly authorizes the FCC to "make such rules and regulations, and issue such orders, not inconsistent with [the 1934 Act), as may be necessary in the execution of its functions", 47 U.S.C.
1541(1982). This provision is similar to Section 1611(3) of the Atomic Energy Act of 1954, which authorizes the Comission to " prescribe such rules, regulations, and orders as it may deem necessary to govern any activity authorized pursuant to the [ Atomic Energy Act of 1954.1..
in order to protect health and to minimize danger to life or property...." 42 U.S.C.
t 5-r 2201(i)(3)(1982). A number of cases have analyzed Section 1541 in detail and determinto that the FCC's ordering authority is necessarily broad.
See Federal Comunications Comm'n v. National Citizens Committee for Broedcasting,436U.S.775at793(1978); United States v. Storer Broadcasting Co.
351 U.S.192 at 203 (1955); National Broadcasting Co. v.
United States, 319 U.S.19) at 196 (1943); Lincoln Telephone and Telegraph Co.
- v. Federal Communications Comm'n, 659 F.2d 1092 (D.C. Cir.1981); American TelephoneandTelegraphv.FederalCommunicationsComm'n,487F.2d865(2d Cir. 1973); GTE Service Corp. v. Federal Communications Comm'n, 474 F.2d 724 (2d Cir.1973); and Western Union Telegraph Co. v. United States, 267 F.2d 715, 722 (2nd Cir.1959).
It has been held that the FCC has authority to issue orders under Section 1541 to persons whether licensed or not.
United i
States v. Southwestern Cable, 392 U.S. 157, 180-81 (1968).
Section 1611 provides broad authority to issue orders as the Comission deems necessary to govern any activity authorized pursuant to the Atomic Energy Act in order to protect the public health and safety. Section 161b similarly authorizes the Comission to issue orders to establish standards and instructions to govern the possession and use of special nuclear material, source material, and byproduct material.
As relevant here, Section 1610 authorizes the Commission to order reports as may be necessary to effectuate the purposes of the Act.
Given this broad statutory authority, it is appropriate to amend 10 CFR 2;202 to have the procedural mechanism in place to issue orders, as necessary, to unlicensed persons when such persons have demonstrated that future control over their activities subject to the NRC's jurisdiction is deemed to be l
. necessary or desirable to protect public health and safety or to minimize danger to life or property or to protect the comon defense and security.
This amendment would revise i 2.202 to establish that techanisn both as to a licensee, as the current i 2.202 provides, and to any person subject to the jurisdiction of the Comission. Such a person includes, but is not limited to, a person who held a license or who was otherwise engaged in licensed activities at the time of the conduct in question, but who no longer holds a license or is so engaged.
in addition, the procedural mechanism for issuing orders to show cause, rene.ted demands to show cause by this rulemaking, to licensees and other persons would 'or set fortn in a separate section in order to make it clear that the right to a hearing does not attach at the time of issuance of a mere demano for inforraation; i.e., a demand that a person or licensee "show cause" why it should not be con.pelled to take or refrain from certain action.
Orders, including orders to show cause, currently are issued under Section 161 of the Atomic Energy Act of 1954, as amended, which are implemented by
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bl2.202(ordertoshowcause),and2.204(orderformodificationoflicense).
In addition, civil penalty orders are issued under Section 234, implemented by 52.205(civilpenalties),
iiRC practice comonly has been to issue a single order, an order to show cause, which requires that certain information be provided to demonstrate why either a proposed or imediately effective action modifying, suspending, or revoking a license should not be taken. The order affords a hearing with regard to these actions.
While Section 189 of the Atomic Energy Act provides for the granting of a hearing in connection with proceedings to taodify, suspend, or revoke a license, neither the Act nor the
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Administrative Procedure Act would recuire a hearing in connection with an I
order to show cause which requires only the submission of information, but does not by its terms modify, suspend or revoke a license.
The Act does not explicitly set out the form or requirements for an order t
to show tause. The Act does, however, authorize the Conmission to collect information pursuant to sections 161c and o and the Commission may issue show cause orders to implement this authority. Section 182 of the Act authorizes the Commissien to request information from licensees and the Commission has implemented this authority by promulgatir.g regulations such as 10 CFR 50.54(f). LicenseessubjecttoCommissicr.requestsunder10CFR50.54(f)or its equivalent in other parts of the NRC's regulations have no hearing rights under the Act regarding these information requests.
Accordingly, to clarify ti;at hearing rights do not attach to mere "show cause" demands for information, the Commission proposes to-separate its current provisions on orders to show cause from the Commission's general ordering authority contained in i 2.202. To avoid any confusion with orders under revised i 2.202, such actions will be called " demands to show cause" and provisions concerning demands to show cause are set forth in a new i 2.204 Under the proposed rule, a demand to show cause will be issued only to require the submission of information.
If a demand to show cause is issued as part of an order requiring action pursuant to i 2.202, hearing rights will be offered but only with respect to the provisions of the order requiring action. This revision to the regulations governing orders changes the rule in Dairyland Power Cooperative, LBP-80-26,12 NRC 367, 370-72 (1980) and Consumers Power Company, CL1-73-38, 6 AEC 1082 (1973), by setting the point at
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which a " proceeding" begins for purposes of triggering the adjudicatory rights under Section 189 of the Atomic Energy Act to the point of issuance of an order compelling a licensee or other person to take or refrain from certain t
actions rather than the point where the agency merely demands information to show why no action should be taken.
The change in practice is consistent with the Commission's power to define the scope of its proceedings. See Bellotti v. NRC, 725 F.2d 1380 (D.C. Cir. 1983).
in order to avoid unnecessary duplication in the regulations, it is proposed that the current i 2.204, " Order for modification of license," be deleted from Part 2, since procedures for modification of a license are includeo in proposed i 2.202.
Propcsed i 2.202(e) provides that if the action ordered by the Commission constitutes a backfit of a Part 50 licensee, the procedures described in 10 CFR 50.109 must be followed.
This provision currt.
appears in the last sentence of 6 2.204, i
Section 2.202 is also reviseo to provide that if the licensee or other person to whom an order is issued consents to its issuance, or the order confirms actions agreed to by the licensee or such other person, such consent l
or agreement constitutes a waiver by the licensee or such other person of a right to a hearing and any associated rights. Such orders will be inmediately effective.
This is not a departure from current Connission practice, but merely conforms the Connission's regulations to such practice. Section 2.202(d) Also provides that the licensee's or other person's agreement to an order must be in writing. The addition of this provision is intended to iconimize the possibility of issuance of a confirmatory order (i.e., an order intended to confirm and bind a licensee to its commitments to certain actions)
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which does not accurately reflect the agreement roched by the parties.
Whether or not the licensee or other person consents to cry order, a person adversely affected by an oroer issued under i 2.202 to modify, suspend or revoke a license will be offered an opportunity for a hearing pursuant to Section 189 of the Atomic Energy Act, consistent with current practice and the authority of the Comission to define the scope of the proceeding on an enforcement order.
See Eellotti v. NRC, 725 F.2d 1380 (D.C. Cir. 1983).
The Comission will tcntinue to publish orders in the Federal Register in accordance with current practice.
The existing i 2.202 Vests authority to issue orders in the Executive Director for Operations (EDO), and various staff office directors.
Currently, the rule limits the ED0's authority to issue orders to emergency situations.
Existing 6 2.204 vests authority to issue orders in the Comission, though this authority has been delegated to staff officers.
The resfsed rules consistently vest such authority in the Comission, leaving it to the Comission's internal delegation authority to delegate such authority to others. This change will avoid the need to amend the regulations each time the title of one of the currently enurrerated officials is changed, and it will also remove the unnecessary limitation on the E00's authority.
TheCommissionisretaining,innewi2.202(e),aprovisionthat,upon a finding that the public health, safety or interest so requires or that the violation is willful, the proposed action may be made ir.cediately effective, pending further proceedings on the order.
A similiar provision appears in current 62.202(f)andi2.204. Relief from the requirements of an immediately effective order, on the other hand, may be sought under the w-
s reltaation provisions contained in that order, or by motion to the Atomic Safety and Licensing Board or the Presiding Officer if a hearing has been recuested.
Theproposedrulealsocontinues,ini2.202(f),thebackfitting requirenents of 6 50.109, including the provision therein that when irnediately effective action is required, the documented evaluation may follow, rather than precede, the regulatory action.
Finally, consistent with the changes to $$ 2.202 and 2.204, i 2.1 is aniended to specify that the scope of Part 2 includes the issuance of orders and demands to show cause to unlicensed persons, and i 2.700 is amended to specify that Subpart G (Rules of General Applicability) applies to all adjudications initiated by an order.
The proposed amendments are procedural in nature.
They do not establish the substantive standards or conditions under which the NRC would issue an croer to a licensed or an unlicensed person.
The Commission is proposing, in a separate rulemaking published simultaneously with this rulemaking, a substentive addition to its regulations in order to put unlicensed persons on notice that they may be held accountable fcr willful misconduct which i
i undermines, or calls into question, adequate protection of the public health and safety.
Once the proposed rules are in effect, consistent with the i
Commission's statutory authority, there will be procedural rules governing the issuance of an order or demand to show cause not only to a licensee, as currently provided, but also to an unlicensed person who willfully causes a licensee to be in violation of Cornission requirements or whose willful misconduct undermines, or calls into question, the adequate protection of the
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public health and safety in connection with activities regulated by the NRC under the Atomic Energy Act of 1954, as amended.
An example of a situation in which it might be appropriate to issue an order to an unlicensed person is where an employee of a corporate licensee might willfully cause that licensee to be in violation of Comission requirements such that the Commission does not have reasonable assurance that requirements to protect the public health and safety will be followed if that persen continues to engage in activities licensed by the Comission.
Depending on the circumstances in such cases, it might be appropriate to issue an order to such a person to either prohibit the person from being involved in activities licensed by the Commission or require the person to provide prior notice to the Commission before engaging in licensed activities.
These types of conditions have been used by the Commission in settlement of litigation in accordance with 10 CFR 2.203.
See Edward Hines, Jr. Mecical Center, 27 NRC 477, ALJ-88-2 (October 7, 1988), and Finlay Testing Laboratories, Inc.,
This rulemaking establishes the procedures to be used in issuing orders to licensed and unlicenseo persons.
The procedures establish the nechanism to provide notice of the issuance of an order and to resolve, through adjudica-tion, whether a particular order is appropriate under the circumstances.
Environmental Impact: Categorical Exclusion The NRC has determined that this proposed rule is the type of action describedincategoricalexclusion10CFR51.22(c)(1).
Therefore neither an
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environmental impact statement nor an environmental assessment has been prepared for this preposed rule.
Faperwork P,ecuttion Act Statement This proposed rule contains no information collection recuirements and therefore is not subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seo.).
Regulatory Analysis The existing regulattens in 10 CFR 2.202 authorize the NRC, through its designated officials, to institute a proceeding to modify, suspend, or revoke a license by service of an order to show cause on a licensee.
The regula-tions, as currently written, do not provide procedures for the NRC to take direct action acainst unlicensed persons whose willful misconduct causes a licensee to violate Commission requirements or places in question reasonable assurance of adequate protection of the public health and safety, although such action is authorized by the Atomic Energy Act of 1954, as amended.
The amendments will make the Cornission's Rules of Practice more consistent with the Commission's existing statutory authority and provide the appropriate procedural framework to take action, in appropriate cases, in order to protect the public health and safety.
The amendments also will make clear that hearing rights do not attach to demands to show cause, consistent with Section 189 of the Atomic Energy Act of 1954, as amended, and the Administrative Procedure Act.
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The proposed rule constitutes the preferred course of action and the cost involved in its promulgation and application is necessary and appropriate.
The foregoing discussion constitutes the regul6 tory analysis for this proposed rule.
Regulatory Flexibility Certification As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)),
the Commission certifies that this rule, if adopted, will not have e signif.
icant economic impact on a substential number of small entities.
The proposed rule establishes the procedural mechanism to issue orders and demands to show cause to unlicensed persons in addition to licensed persons, who were previously covered. 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 Eusiness Size Standards found in 13 CFR Part 121. Such. obligations would not be created bnfil en order is issued, at which time the person subject to the order would have a right to a h6arihg in accordance with the regulations.
Backfit Analysis This proposed rule does not involve any new provisions which would impose backfitsasdefinedin10CFR50.109(a)(1). Accordingly ro backfit analysis pursuant to 10 CFR 50.109(c) is required for this proposed rule.
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. List of Subjects in 10 CFR Part 2 Administrative practice ar.d procedure, Antitrust, Byproduct raaterial, Classified informatien, Environriental protection, Nuclear materials, Nuclear power plants and reactors, Penalty. Sex discrimination, Source material, Special nuclear material, Weste treatment and dispcsal.
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 of 1974, as amended, and 5 U.S.C. 553, the hRC is proposing to adopt the following amendments 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.9a8,953,asamended(42U.S.C.
2201, 2231); sec. 191, as amended, Pub. L.87-615,76 Stat.409(42U.S.C.
2241); sec. 201, 88 Stat.1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.
Sec. 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, asamended(42U.S.C.2073,2092, 2093, 2111, 2133, 2134, 2135); sec.114(f), Pub. L.97-425, 96 Stat. 2213, as amended (42 U.S.C.10134(f)); sec.102, Pub. L.91-190, 83 Stat. 853, as amendeo (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 1
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U.S.C. 2201(b), (i), (o), 2236, 22B2); sec. 206, 88 Stat.1246 (42 U.S.C.
5846). Secticns 2.600-2.606 also issued under sec. 102, Pub.-L.91-190, E3 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, 2.760, 2.770, 2.780 also issued under 5 U.S.C. 557. Section 2.764 and Table 1A of Appendix C are also issued uncer 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. 936, as amended (42 U.S.C.
2133) and 5 U.S.C. 552.
Sections 2.800 sr.d 2.808 also issued under 5 U.S.C.
553. Section 2.809 elso 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, Fub. l.97-425, 96 Stat.2230(42U.S.C.10154).
Subpart L also issued under sec. 189, 68 Stat.
955(42U.S.C.1239). Appendix A also issued under sec. 6, Pub. L.91-560, 8a Stat.1473(42U.S.C.2135). Appendix B also issued under sec. 10, Pub. L.99-240, 99 Stat. 1842 (42 U.S.C. 2021b et seq.).
2.
Section 2.1 is revised to reso as follows:
$ 2.1 _ Scope.
This part governs the conduct of all proceedings, other than expcrt and import licensing proceedings descrited in Part 110, under the Atomic Er.ergy Act of 1954, as amended, and the Energy Reorganization Act of 1974, for:
(a) granting, suspending, revoking, amending, or taking other action with respect to any license, construction permit, or application to transfer a license; (b) issuing orders and demand;. to show cause to persons subject to the Comission's jurisdiction, including licensees and persons not licensed by the
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Commission; (c) imposing civil penalties under Section 234 of the Act; and (d) public rulemaking,
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3.
Section 2.202 is revised to read as follows:
i 2.202 Orders.
(a) The Comission may institute a proceeding to modify, suspend, or revoke a license or to take such other action 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 Concission's jurisdiction is charged, or the potentially hazardoc: co'
.s
,ns or other facts deetted to be sufficient ground for the proposed ac;
., and specify the action proposed; (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 other time as may be specified in the order; (3)
Inform the licensee or any other person adversely affected by the order of his or her right, within twenty (20) days of the date of the order, or such other time 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; and (5) State the effective date of the order.
(b) A licensee or other person to whom the Commission has issued an order under this section must respond to the order by filing a written answer
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- under oath or affirmation. The answer shall specifically acmit or deny each allegation or charge made in the order, and shall set forth the matters of fact and law on which the licensee or other person relies, and, if the order is not consented to, the reasons as to why the order should not have been issued. Except as provided in paragraph (d) of this section, the answer may demand a hearing.
(c) If the answer demands a hearing, the Commission will issue an order designating the time bnd place of hearing.
(d) An answer ray consent to the entry of an order in substantially the form proposed in the order with respect to all or some of the actions proposed in the order.
The consent of the licensee or other person to whom the order has been issued to the entry of an order shall ecostitute a waiver by the licensee or other person of a hearing, findings of fact and conclusions of law, and of all right to seek Conraission and judicial review or to contest the valicity of the order in any forum as to those matters which have been consented to or agreed to or en which a hearing has not been requested.
The order shall have the same force 6nd effect as an order made after hearing by a presiding officer or the Cornission, and shall be effective as provided in the order.
(e) When the Commission finds that the public health, safety, or interest so requires or that the violation or conduct causing the violation is willful, the order may provide, for stated reasons, that the proposed action be immediately effective pending further order.
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(f) If the order involves the modification of a Part 50 license and is a backfit, the requirements of 6 50.109 of this chapter shall be followed, unless the licensee has consented to the action required.
4 Section 2.204 is revised to read as follows:
i 5 2.204 Demand to show cause.
(a) The Commission may issue to a licensee or other person subject to the jurisdiction of the Commission a cemand to show cause why such actions as may be proper should net be taken, which will:
(1) Allege the violations with which the licensee or other person is chorged, or the potentibily hazardous conditions or other facts deemed to be sufficient ground for the proposed action, and specify the action preposed; afio (2) provide that the licensee or other person must file a written answer to the demand to show cause under oath or affirmation within twenty (20) days of'its date, or'such other time es may be.specified in the demand to show cause.
(b) A licensee or other person to whom the Commission has issued a demand to show cause under this section must respond to the demand by filing a written answer under oath or affirmation.
The answer shall specifically admit or deny each allegation or charge made in the demand to show cause, and shall set forth the matters of fact and law on which the licensee or other person relies.
(c) An answer may consent to the entry of an order in substantially the form proposed in the deii.and to show cause.
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(d) Upon review of the answer filed rursuant to paragraph (a)(2) of this section, or if no answer is filed, the Commission may institute a proceeding pursuant to 10 CFR 2.202 to take the action proposed in the demand to show cause or to take such other action as may be proper.
5.
Section 2.700 is revised to read as follows:
l
$ 2.700 Scope of subpart.
The general rules in this subpart govern procedure in all adjudications initiated by the issaance of an order pursuant to.5 2.202, an order pursuant te i 2.205(e), a notice of hearing, a notice of proposed action issued pursuant to i 2.105, or a notice issued pursuant to 5 2.102(d)(3).
Tne procedure applicable to the proceeding on an application for a license to-receive and possess high-level raaicactive waste at a geologic repository operations area are set forth in Subpart J.
lj; Dated at Rockville, Maryland, this day of 1990.
D 5
For the Nuclear Regulatory Commission.
Samuel d. Chilk, Secretary of the Commission.
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The Honorable John B. Breaux Chairman Subcommittee on Nuclear Regulation Comittee on Environment and Public Works 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.
The Commission is proposing to initiate a rulemaking to revise the Commission's procedures in 10 C.F.R. Part 2, Subpart B for issuing orders to include persons not licensed by the Commission but who are otherwise subject to the Commission's jurisdiction.
The proposed amendments would more fully reflect the Commission's existing statutory authority to issue orders than is presently the case, and will also clarify the types of Commission orders to which hearing rights attach.
Sincerely, William C. Parler General Counsel
Enclosure:
As stated cc:
The Honorable Alan K. Simpson
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The Honorable Philip R. Sharp, Chairman Subcomittee cn Energy and Power Comittee on Energy and Commerce United States House of Representatives Washington, DC 20515
Dear Mr. Chairman:
Enclosed for your information are copies of a proposed rule to be published in the federal Register.
The Comission is proposing to initiate a rulemaking to revise the Comission's precedures in 10 C.F.R. Part 2, Subpart B, for issuing orders to include persons rict licensed by the Comission but who are otherwise subject to tne Comission's jurisdiction. The proposed amendments would more fully reflect the Comission's existing statutory authority to issue orders than is presently the case, and will also clarify the types of Comission orders to which hearing rights attach.
Siqcerely, b
i 1111am C. Parler General Counsel
Enclosure:
As stated cc:
The Honorable Carlos J. Moorhead
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The Honorable Morris K. Udall, Chairman
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Subcomittee on Energy and the Environment Committee on Interior and Insular Affairs United States House of Representatives Washington, DC 20515
Dear Mr. Chairman:
Enclosed for your information are copies of a proposed rule to be published
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in the Federal Register.
The Commission is proposing to initiate a rulemaking to revise the Commission's procedures in 10 C.F.R. Part 2. Subpart B, for issuing orders to include persons not licensed by the Comission but who are otherwise subject to the Commission's jurisdiction.
The proposed amendments would more fully reflect the Commission's existing statutory authority to issue orders than is i
presently the case, and will also clarify the types of Comission orders to j
which hearing rights attach.
Si cerely, f(
/sWi liam C. Parler General Counsel
Enclosure:
As stated cc: The Honorable 11anuel Lujan, Jr.
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tiRC PROPOSES TO REVISE PROCEDURES FOR ISSUING ORDERS The Nuclear Regulatory Comission is proposing to amend its regulations to clarify the Commission's existing statu+.ory authority to j
issue orders and orders to.show cause, renamed " demands to show cause" in the rulemaking, to persons not licensed by the NRC but who are otherwise
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subject to its jurisdiction. The proposed amendments also would clarify that public hearing rights do not attach to mere "show cause" demands for information.
The proposed amendments would not establish the substantive standards or conditions :inder which the agency would issue'an order to a licensed or unlicensed person.
The Commission is proposing, in a separate rulemaking published simultaneously with this rulemaking, a substantive addition to its regulations in order to put unlicensed persons or, notice that they may be held accountable for willful nisconduct which undermines or calls into question adequate protection of the pul ;c health and safety.
An example of a situation in which it might be appropriate to issue an order to an unlicensed person is where an employee of a corporate licensee might willfully cause that licensee to be.in violation of NRC requirements such that the Commission does not have reasonable assurance
'that requirements to protect the public health and safety will be followed if that person continues to engage in NRC-licensed activities.
2 As proposed, orders instituting proceedings to modtfy, suspend or revoke a license or for such other action as may be proper would have a public hearing right attached and would be made immediately effective if the Cornission found the public health, safety or interest required. A demand to show cause why certain actions should not be taken would not carry a public hearing right.
Written comments on the proposed amendcients to Part 2 of the Commission's regulations should be received by (date).
They should be addressed to the Secretary of the Commission, Nuclear Regulatory Commission, Washington, D.C.
20555, Attention:
Docketing and Service Branch.
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