ML20198M160
| ML20198M160 | |
| Person / Time | |
|---|---|
| Issue date: | 07/31/1996 |
| From: | Cant G NRC |
| To: | Di Palo A NRC |
| Shared Package | |
| ML20198L674 | List: |
| References | |
| FRN-57FR1890, FRN-63FR1890, RULE-PR-110, RULE-PR-150, RULE-PR-30, RULE-PR-32, RULE-PR-40, RULE-PR-50, RULE-PR-52, RULE-PR-60, RULE-PR-61, RULE-PR-70, RULE-PR-71, RULE-PR-72 AF35-2-041, AF35-2-41, NUDOCS 9801200006 | |
| Download: ML20198M160 (1) | |
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From: Geoffrey Cant To: AJD-Date: 7/31/96 4:56pm
Subject:
Addition to Del Misc rule package .
In further review of the draft rulemaking package, OE has identified a need to reflect the '
changes that are being made in the rule itself in the scope provision of each 10 CFR Part in which the rule appears. These provisions put the reader on notice of the existence of this rule.
Please add th: :::'J:r.: shown in the attached document to the rulemaking package. We '
have also included a sentence to go in the Statement of Considerations to reflect these changes. This draft incorporates preliminary comments by OGC. We anticipate that they will -i indicate tomorrow that their prior concurrence remains valid.
Please call me or Joe Gray with any questions. [I will be downtown at a meeting in the moming.) ,
Geoff CC: ENJ, JRG, SXB 3
4 O, 30 57FR1390 . PDR.
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RESEARCH ACTION ITEM Fcbruary 9, 1996 MAIL CONTROL FORM 10:17 am FROM: EDO RES No.: 960024 TO: MORRISON EDO No.:
ACTION NECES/APPR?: N FOIA No.: WITS No.: 9600007 DESCRIPTION: STAFF REQS-SECY-96 017-CHANGES TO THE del.lBERATE MISCONDUCT RULE,10 CFR PTS...
SPECIAL INSTRUCTIONS: DRA PLS. PROVIDE A. SUMMEROUR (415-5089) WITH EDO AND RES DUE DATES.
8 RECEIVED BY RES: February 9, 1996 DOCUMENT DATE:February DUE TO RES: February 28,19961996 DUE TO EDO:
ASSIGNED TO: B. MORRIS, DRA POR SIGNATURE OP:
ROUTING:
D. MORRISON AULUCK T. SPEIS DIPALO .
RT ti ROUR i . . . . . . . . -
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~' l' Action: Morrison, RES
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p *A NUCLEAR RECULATCRY COMMISSION Milhoan W ASHINGTON, D.C. 20666 Thompson
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orrect oF THE February 8. 1996 Paperiello, NMSS Lieberman, OE !
Lesar, ADM i secntTAny DiPalo, RES r MEMORANDUM TO: James M. Taylor.
Execu i e Di e for Operations FROM: Joh C. oyl , Secretary :
SUBJECT:
STAFF REQUIREMENTS - SECY-96-017 - CHANGES TO THE DELIBERATE MISCONDUCT RULE, 10 CFR PARTS 30.10, 40.10, 50.5, 60,11, 61.9B, 70.10, ..
72.10, 76.10,-110.78, 150.2 AND PART 71 This is to advise you that the Commission (Chairman Jackson, exercising delegated authority pursuant to a delegation from the commission *, in accordance with NRC Reorganization Plan No. 1 of 1980) has not' objected to che proposed changes to the Deliberate ;
Misconduct Rule. ~(RES) 9600007 cci Chairman Jackson i Commissioner Rogers
.OGC i- ,
OCA ,
OIG Office Directors, Regions, ACRS, ACNW, ASLBP (via E-Mail) 4* This decision.was made after' consultation with Commissioner Rogers,- who has not indicated an objection to this negative consent item.
- SECY NOTES. THIS SRM AND SECY-96-017 WILL BE MADE PUBLICLY
- AVAILABLE 5 h KING DAYS FROM THE DATE OF THIS SRM. _;
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RESEARCH ACTION ITEM Pcbruary 9, 1996 MAIL CONTROL FORM 10:17 am FROM: EDO RES No.: 960024 TO: MORRISON EDO No.:
ACTICN NECES/APPR?: N FOIA No.: WITS No.: 9600007 DESCRIPTION: STAFF REQS-SECY-96-017-CHANGES TO THE DELIBERATE MISCONDUCT RULE,10 CFR PTS...
SPECIAL INSTRUCTIONS: DRA PLS. PROVIDE A. SUMMEROUR (415-5889) WITH EDO AND RES DUE DATES.
DOCUMENT DATE: February 8 RECEIVED BY RES: February 9, 1996 DUE TO RES: February 28,19961996 DUE To EDO:
ASSIcNED TO: B. MORRIS, DRA FOR SIGNATURE OF:
ROUTING:
D. MORRISON AULUCK T. SPEIS DIPALO COSTANZI RIANI MARTIN .;UMMEROUR
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. Action:
, ,/,. .f .,:,,'#g UNITED STATES Tys: Taylor- ~
y* ',, NUCLEAR REGULATORY COMMISSION Milhoan t
fo waswiuoT ON,0.C. 70666 -Thompson ;
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%,,'**** February 8, 1996 Paperiello, NMSS l' Lieberman, OE ca racc or THc Lesar, ADM stent t Any i OlPalo, RES i j
i MEMORANDUM TO: Jaras M. Taylor Exesa ive D ector for Operations i
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-FROM: John'C. I 1 , Secretary j
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SUBJECT:
STAFF REQUIREMENTS - SECY-96-037 - CllANGES TO 3 THE DELIBERATE MISCONDUCT RULE, 10 CFR PARTS 30.10, 40.10, 50.5, 60.11, 61.9B, 70.10, ,
72.12, 76.10, 110.7B, 150.2 AND PART 71 -
This is to advise you that the Commission (Chairman Jackson,
- exercising delegated authority pursuant to a delegation from the 4 Commission *,. in accordance with NRC Reorganization Plan No. I of 1980) has not objected to the proposed changes to the Deliberate Misconduct Rule. (RES) 9600007 cc: ,Chai man Jackson i Commissior.er Rogers .
' Office Directors, Regions, ACRS, ACNW, ASLBP (via E-Mail)
- I This-decision was-made-after consultation with Commissioner i l Rogers, who has not ' indicated an' objection to this negative l
-consent item.
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SECY NOTE: - THIS . SRM AND SECY-96-017 WILL BE MADE PUBLICLY AVAILABLE 5 WORKING DAYS FROM THE DATE OF THIS SRM. !
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RULEMAKING ISSUE (NEGATIVE CONSENT)
January 26, 1996 SECY-96-017 f.Qft: The Comissioners f.RQB: James M. Taylor, Executive Director for Operations *
SUBJECT:
CHANGES TO THE DEllBERATE MISCONDUCT RULE, 10 s/R PARTS 30.10, 40.10, 50.5, 60.11, 61.98, 70.10, 72.12, 76.10, 110.78, 150.2 AND PART 71 PURPOSE:
To inform the Comissim that the EDO intends to sign the Rulemaking Plan to amend the Deliberate M ; conduct Rule.
BACKGROUND:
In 1991, the Comission adopted changes to NRC regulations that established the Deliberate Misconduct Rule, which took effect September 16, 1991. This rule placed licensed and unlicensed persons on notice that they may be subject to enforcement action for deliberate misconduct that causes a licensee to be in violation of any of the Comission's requirements, or for deliberately providing to the NRC or a licensee information that is incomplete or inaccurate and in some respect material to the NRC. After this rule became effective, the NRC realized that it did not apply to applicants for NRC licenses, applicants for certificates of compliance and holders of certificates of compliance for packaging and transportation of licensed material. On May 19, 1995, the Office of Enforcement requested that the Office of Nuclear Regulatory Research initiate rulemaking to correct this we ,iknes s .
CONTACT: NOTE: TO BE MADE PUBLICLY AVAILABLE WHEN Tony DiPalo, RES/DRA THE FINAL SRM IS MADE AVAILABLE 415-6191 t
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There is a weakness in the present regulations in that the Deliberate current Misconduct Rule does certificate holders, and not(3) apply to (1) applicants applicants for licenses, for certificates. (2)ff believes The sta '
that there may be sign)ficant safety consequences from the knowing submission
- of false information or other deliberate wrongdoing by an applicant for a license or certificate of compliance. The attached Rulemaking Plan would modify the Deliberate Misconduct Rule in Title 10 c. the Code of Federal Regulations, Chapter I, by eliminating these weaknesses.
As part of the review of this rulemaking plan, OGC not.i.o that a- related l regulatory problem also needs to be addressed. This problem is to evaluate whether certificate holders and applicants for certificates should clearly be i made subject to a number of Part 71 and 72 requirements, e.g., Subparts D, E, and F of Part 71 and Subpart L of Part 72 (which appear to be directed to certificate holders, but are unspecified in their application); Part 71, .
Subpart H; and Part 72, Subpart G (the quality assurance provisions that are l explicitly directed toward licensees, but which concern requirements that ,
ought to be followed by certificate holders as well). Notices of violation '
are not now issued by the NRC staff to certificate holders and applicants when they violate these provisions because the regulation > are unclear regarding NRC's jurisdictisn over. certificate holders and a>plicants. The legal rationale supporting the rulemsking proposed in tiis rulemaking plar, would also support an extension of the rulemaking to address this related regulatory problem. The staff has discussed this concern with OGC and intends to address
-this problem in a separate rulemaking since it will be more complex and will require a longer schedule.
COORDINATION:
The Office of the General Counsel concurs with the Rulemaking Plan.
RECOP9ENDATION:
Note that it'is my intention to approve the Rulemaking Plan within 10 days from the date of this paper unless otherwise directed by the Commission.
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s M. 1*ylor ecutive Director for Operations
Attachment:
.As stated
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..t GECY NOTE:- In the absence of. instructions tc the contrary..SECY'will l notify.the staff on Friday, -February 9,1996- that the Connaission, by
-r negative consent assents--to the action proposed in this papere
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- RULEMAKING PLAN .
CHANGES.TO 10 CFR 30.10,-40.10, 50.5, 60.11, 61.9b, 70.10
-72.12, 76.10, Il0.7b, 150.2 AND PART 71 AMENDMENTS TO THE DELIBERATE MISCONDUCT RULE 4
Lead Office: Offita of Nuclear Regulatory Research Staff
Contact:
Tony DiPalo', RDB Concurrences:
- 1. Morrison,RESM //[7(( 0 te~
ll C. Papiriello, NMSS ll b Date cm wd n was n ters' J. Lieberman, OE Date man aslo rl9e W. Olmstead, OGC Date W% n [t >l 4C W. Russell, NRR Date Oh fa h L cericu d n 1(lulGr Approval:
'J. Taylor, EDO Date J
RULENAKING PLAN CHANGES TO 10 CFR 30.10, 40.10, 50.5, 60.11, 61.9b, 70.10 72.12, 76.10, 110.7b, 150.2, AND PART 71 AMENDMENTS TO THE DELIBERATE MISCONDUCT RULE Reculatory Issue There is a weakness in the present regulations in that the Deliberate Misconduct Rule does not apply to (1) applicants for licenses, (2) current certificate holders, and (3) applicants for certificates. The staff believes that there may be significant safety consequences from the knowing submission of false information or other deliberate wrongdoing by an applicant for a license or certificate or holder of a certificate of compliance. Some examples that could represent a threat to public health and safety are a spent fuel cask that is certified by the NRC based on falsified test data or a quality assurance program that is submitted for NRC approval but is supported by deliberatri / falsified data'that leads to a significant defect. A certificate holder who obtained a certificate by deliberate submission of false information would escape NRC enforcement action because the deliberate misconduct would not have put a "NRC licensee" in violation. To effectively exercise its responsibility from the point of putlic health and safety under the AEA, the Commission needs to be able to prevent or otherwise deter submission of false or inaccurate information.
Current Rule Reouirements In 1991, the Commission adopted changes to NRC regulations that established the Deliberate Misconduct Rule, which took effect Sc::tember 16, 1991. This rule placed licensed and unlicensed persons on notice that they may be subject to enforcement actions for deliberate misc educt that causes a licensee to be in violation of any of the Commission's rem trements, or for deliberately providing to the NRC, a licensee, or a contractor information that is incomplete or inaccurate in some respect that is material to the NRC. The 1991 rule established procedures to be used in issuing orders to licensed and unlicensed persons.
The requirements for an applicant or licensee to provide complete and accurate information are expressed in the Commission's regulations in Title 10 of the Code of Federal Regulations, Sections 30.9, 40.9, 50.9, 60,10, 61.9a, 70.9, 71.6a, 72.11, 76.9 and 110.7a. The Deliberate Misconduct rule is found at 10 CFR 30.10, 40.10, 50.5, 60.11, 61.9b, 70.10, 72.12, 76.10, 110.7b, and i 150.2.
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f Reauletory Problem to be Resolved On November 29, 1991, the NRC staff issued an Order Revoking License (Effective Immediately) to Dr. Randall C. Orem. The order was issued after the staff learned that the' facility described in Dr. Orem's license a) plication as "being finished at this time" had never been started and that tie proposed place of use of the byproduct material was a private residence without adequate provisions for safe handling and use of the material. The iGC's Office of Investigations learned that the information concerning the facility was inaccurate and had been included in the license application that was prepared by a consultant for Dr. Orem. In reviewing this issue, the staff realized that the deliberate Misconduct Rule, through an apparent oversight, failed to include aDDlicants for a license and the applicants' contractors.
Thus, the regulations do not provide any deterrence to prevent these groups of people from providing false or incorrect information. In the staff's response to the Commission concerning issues raised by the Orem case, the staff discussed from an enforcement perspective the difficulty in applying the Daliberate Misconduct Rule to Dr. Orem's consultant since at the time the infomation was submitted, Dr. Orem was not a licensee. As a result of this case, the Commission underscored the importance that it places on the completeness and accuracy of information submitted by both applicants and licensees by stating: "We cannot overstate the importance of a licensee's or an applicant's duty to provide the Commission with accurate information." The Commission also addressed consultants, noting that: "Even if the applicant turns to a consultant to help prepare the license application, the applicant -
remains responsible for the contents of the application."'
To ensurc that holders of or applicants for an NRC licer.se or certificate, and the employees, contractors, consultants, and suppliers to these persons are subject to enforcement action for deliberate misconduct, the staff proposes to modify the Deliberate Misconduct Rule in Title 10 CFR, Chapter I.
The proposed rule would amend sections of the existing Deliberate Misconduct Rule found at 10 CFR 30.10, 40.10, 50.5, 60.11, 61.9b, 70.10, 72.12, 76.10, 110.7b, and 150.2. It would also add appropriate provisions to Part 71 which is currently not covered under the existing rule. All who are covered by this proposed rulemaking may be subject to enforcement action under the Deliberate Misconduct Rule if the information they provide to the NRC is incomplete or inaccurate and in some respect material to the NRC, or if their deliberate misconduct causes a licensee or certificate holder to be in violation of any of the Commission's requirements.
Preliminarv Reaulatory Analysis The purposes of this rulemaking are to provide deterrence for deliberate misconduct including making false statements to the NRC and to provide the regulatory basis to penalize someone guilty of deliberate misconduct. Because there has been an instance in which a consultant to an applicant for a license
'In the matter of Randall C. Orem, D.0., CLI-93-14, 37 NRC 423, 430 (1993).
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3 provided inaccurate information that was included in the license ap)lication, there is a clear need for the agency.to have authority to address t1ese situations in the future. Because the persons who would be effected by this-rulemaking are not NRC licensees, the conventional alternatives to rulemaking for imposing requirements (e.g. order or license condition) do not apply. In fact, the staff was unable to como up with any viable alternative to solve this problem, other than ruleaaking. Accordingly, the alternative to take no action was not considered.
The proposed amendments would enable th'e Commission to take appropriate enforcement action against holders of or applicants for an NRC license or certificate. or a person employed by any of those persons, who deliberately violate Commission requirements or cause licensees or certificate holders to
. violate Commission requirements. The effect of available enforcement sanctions will help ensure the accuracy of information submitted and reduce the probability of deliberate misconduct-by licensees, certificate holders, and applicants, as well as their employees and contractors.
.The staff believes that no regulatory analysis is required since the benefits
' derived from the proposed modifications are similar to those provided by the Deliberate Misconduct Rule which became effective September 16, 1991. The
-proposed rule is further supported by the Atomic Energy Act, Section 186, ,
which addresses false statements made in applications.
OGC's legal Suf#1ciency Analysis Demonstratino that no known Basis Exists for Leoal Ob: ec t i cer.
OGC has no legal objection to initiation of rulemaking. OGC believes that the NRC has statutory authority under the Atomic Energy Act of 1954, as amended, to bring certificate holders and applicants for licenses and certificates within the scope of its regulations. The general issue of NRC's jurisdiction over unlicensed persons was extensively addressed in the Deliberate Misconduct Rule, see 56 Fed. Rec. 40666 - 40671, and is the subject of an internal June 3, 1988, OGC memorandum. The legal rationale supporting NRC's exercise of jurisdiction over certificate holders and applicants in the proposed rulemaking is very similar to that employed in the Deliberate Misconduct Rule.
Backfit Analysis The NRC has determined that the backfit rule,10 CFR 50.109, does not apply to this proposed rule, and therefore a backfit analysis is not required. These amendments do not involve any provisions that would impose backfits as define 6 in 10 CFR 50.109(a)(1).
Aareement State Considerations-1 No' problems from the proposed amendment have been identified that would adversely affect the Agreement States.
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Supportina Documents None Required. >
Resources Reouired It :is anticipated that 0.75 NRC FTEs will be needed to complete this action-('0 .35 RES, 0.2 OE, and 0.2 all other). These resources are within existing budget allocations.
Lead Office Staff and Staff From Su3portino Offices RES T. DiPalo/T. Martin OGC B. Reamer /N. Jensen OE G. Cant NHSS S. Baggett/E. Easton ADM M._Lesar Steerino Group No. These amendments are not considered significant enough to warrant a steering group.
Public ParticiDation This rulemaking plan will b3 placed on the FedWorld Bulletin Board. The proposed amendments will be published in the Federal Reaister as a proposed rule for public comment.
Is it Recommended that the EDO Issue the Rale in Accordance with Manacement Directive 9.17?
No. The proposed rule constitutes an expanded application of NRC jurisdictional authority in the existing Deliberate Misconduct Rule.
Therefore, issuance of the proposed and final rule will require Commission
. approval.
Schedule-The-schedule is expressed in terms of time from approval of Rulemaking Plan.
Proposed Rule to EDO Approval of Rulemaking Plan + 6 months Public Comment Period Ends Approval of Rule.naking Plan + 9 months Final Rule to EDO Approval of Rulemaking Plan + 12 months 4
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submittal of materially incomplete or inaccurate information or other deliberate wrongdoing by such persons, these persons should be subject to enforcement action under the Commission's existing rules regarding deliberate misconduct.
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