ML20198M200
| ML20198M200 | |
| Person / Time | |
|---|---|
| Issue date: | 11/07/1995 |
| From: | Morrison D NRC OFFICE OF NUCLEAR REGULATORY RESEARCH (RES) |
| To: | Lieberman J, Paperiello C, Russell W NRC OFFICE OF ENFORCEMENT (OE), NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS), Office of Nuclear Reactor Regulation |
| 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 AF35-2-044, AF35-2-44, NUDOCS 9801200019 | |
| Download: ML20198M200 (8) | |
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UNITE 1 STATES . .. i :.
,= ,f NUCLEAR REGULATORY COMMISSION . .
I WASHINGTON. o-C. asse64e01
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LNovemtier 7,1995 e
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MEMORANDUM TO: Carl J. Paperiello~, Director '
Office of Nuclear Material Safety and Safeguards William T. Russell, Director <
Office of Nuclear Reactor Regulation James _Lieberman, Director Office of Enforceme.nt William J. Olmstead, Associate General Counsel for Licensing and Regulation Office of the General Counsel FROM: David L. Morrison, Director -
Office of Nuclear Regulatory Research
SUBJECT:
RULEMAKING PLAN: 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 (RES950169)
Attached for your concurrence is a rulemaking plan to amend the regulations that established the Deliberate Misconduct Rule, which took effect on September _ - 16, 1991. This' rule placed licensed and unlicensed persons on-notice that they may be subject to-enforcement action for deliberate misconduct by causing a licensee to be in violation of any of the Commission's requirements or for deliberately providing to the NRC, or a licensee,
'uremation that is incomplete or inaccurate and in some respect material to the NRC.
The proposed amendments to the rule will include applicants for NRC licenses and certificates of compliance,- including employees, the employees of their contractors, and consultante who assist in the preparation of these applications.
The following is a summary of this request: 1 1.
Title:
Rulemaking Plan: Amendmants'to the Deliberate Mi.sconduct. Rule ~i
.2.- Task Leader: Tony _ DiPalo (415-6191)
- 3. Workina' Group Members:' G.' Cant, OE; B. Reamer and N. Jensen, OGC; S, Baggett, NMSS; M. Lesar, ADM 4.- Steerino Group Members: -None - l
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- CrJ. Paperiello etial!
- 2-a 5 5.L Enhanced Public Participafion
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- 6. .- Level'1 or 2 Item of Compatibility for Aareement States:. No ,
7.. . Recuested Action: . Office Concurrence.- t 8.: 'Recuested Completion Date: . November 21, 1995 :
- 9. - Renources and Coordination: Estimated res'ources' to develop this; -
ru'emaking.are three-fourths'FTE. No contractor support is needed.. A- ,
copy of this concurrence package ha_s been forwarded to,the Office of the ;
Controller for coordination of resource-issues and to the IG for.
. information. -
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Attachment:
Rulemaking Plan.
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- R. Scroggins,;00 L.~J. Norton; OIG
, i G. Cranford,' IRM D. Meyer,- ADM-e J
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C. J. Paperiello et al 2
- 5. Enhanced Public Participation: No
- 6. Level 1 or 2 Item of Compatibility for Aareement States: No
- 7. Reauested Action: Office Concurrence
- 8. Reauested Completion Date: November 21, 1995
- 9. Resources and Coordination: Estimated resources to develop this rulemaking are three-fourths FTE. No contractor support is needed. A copy of this concurrence package has been forwarded to the Office of the Controller for coordination of resource issues and to the IG for information.
' Attachiaent:
Rulemaking Plan cc w/att.:
R. Scroggins, OC L. J. Norton, OIG G. Cranford, IRM D. Meyer, ADM Distribution:
RDB r/f GCant MLesar BReamer NJensen SBaggett RAuluck DOCUMENT NAME:o:\dipalo\cfr CF- Y N PDR Y' N T3 eseelve a espy of thle dooument,indeste in the boa: 'C' = Copy without ettechment/ enclosure *E' = Copy w"5 ettechment/ enclosure *N* = No copy
'See previous concurrencee YFilCE IRDB:DRAA RDB:DRA- 0:DRA qvi D:RES g(
NAME -- TDiPaloO TMartin W BMorris'+r6 M DMorrisdn DATE 11/0)i/95 W/1/95 6/1 /95 //////95 0FFICIAL RECORD COPY (RES File Code) RES lll'I pd
RULEMAKING 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 T0 THE DELIBERATE MISCONDUCT RULE Regulatory 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 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 cuality assurance program that is submitted for NRC approval but is supportec by deliberately 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 public 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 September 16, 1991. This rule placed licensed and unlicensed persons on notice that they may be subject to enforcement actions for deliberate misconduct that causes a licensee to be
.in violation of any of the Commission's requirements, nr for deliberately providing to tne NRC, a licensee, or a contractor information that is incomplete or inaccurate in some res)ect that is material to the NRC. The 1991 rule established procedures to 3e used in issuing orders to licensed and unlicensed persons.
-The requirements for an applicant or licensee to provide complete and accurate information are expres:.ed in the Commissior's regulations in Title 10 of the Code of Federal Regulations, 6ections 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 i; 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.
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Reau'latory Problem to be Resolved On November 29, 1991, the NRC staff issued a4 Order Revoking License .__ ;
- (Effective Immediately) to Dr. Randall C. Oren. -The order was -issued after the staff learned that the facility described in_ Dr. Orem's license-application as "being finished at this time"-had never been started and that
the proposed place of use of the byproduct material was a private residence without adequate provisions #or safe handling < and use of the material. The ,
NRC's Office of Investigatie. learned that the information concerning the >
~ facility was inaccurate anc' 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 applicants for-a license and the applicants' contractors.
Thus, the regulations do not provide any deterrence to these group of people from providing false or incorrect-information. In the staff's response _to the Comission concerning issues raised by the Orem case, the staff discussed from an enforcement perspective the diffi::ulty in applying the Deliberate Miscoaduct Rule to Dr. Orem's consultant since at the time, 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: "5ven if the applicant turns to a consultant to help prepare the license application, the applicant remains responsible for the contents of the appl ice,ti on. " In the matter of Randall C. Orem. D.0.. CLI-93-14, 37 NRC 423, 430 (1993).
To ensure that applicants for licenses and applicants for and holders of certificates, their employees, and the employees of contractors and consultants to these persons , as well as licensees and suppliers and consultants of licensees, 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.
Preliminary Reaulatory Analysis
.The purpose of this rulemaking is to provide deterrence for making false statements'to the NRC and to provide the regulatory basis to penalize someone who knowingly makes such statements. Because there has been an instance in
-which a consultant to an applicant for a license provided inaccurate 2
information-that was included in _ the license application, there is a clear 1 need for the agency to have authority to address these situations in the future; .Because the persons who would be affected 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 come up with any viable alternative to. solve this problem, '
other than:rulemaking. Accordingly, the alternative:to take no action was not considered.
The proposed amendments would enable the Commission to take appropriate enforcement action against holders of or applicants for-an NRC license or certification, or a person employed by any of'those persons, who dCiberately
~v iolate Commissic,n 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.
0GC's Lecial Sufficiency Analysis Demonstratino that no known Basis Exists for Leoal Ob: ection 0GC has no legal objection to initiation of rulemaking. 0GC 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 Delitsrate Misconduct Rule, see 56 Fed. Reo. 40666 - 40671, and-is the subject of an internal June 3,:1988, 0G0 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 defined in 10 CFR 50.109(a)(1).
-Acreement State Considerations No problems from the proposed amendment have bean identified that would iadversely affect the Agreement States.
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Supportina Documents None Required.~
Resources Reauired it is anticipated that an additional 0.75 NRC FTEs will be needed to complete this action (0.35 RES, 0.2 OE, and 0.2 all other).
Lead Office St'aff and Staff From Supporting Offices RES T. DiPalo/T. Martin 0GC- B. Reamer /N. Jensen '
OE G. Cant NMSS S. Baggett/E. Easton ADM. M. Lecar Steerino Group No.. These amendments are not considered significant enough to warrant.a steering group.
Public Participation ,
This rulemaking plan will be placed on the FedWorld Bulletin Board. The proposed amendments will be published in the Federal Reaister as a proposed rule for public comment in accordance with the rulemaking MD Directive 6.3.
Is it Recommended that the-EDO Issue the Rule , .ccordance with Management Directive 9.17?
No. ~The proposed rule constitutes an expanded application of NRC jurisdictional authority in the existing Deliberate Misconduct Rule .
. Therefore, this proposed rulemaking will require Commission approval for publication in the Federal Reoister.
Schedule The schedule is expressed in terms of time from approval of Rulemaking Plan.-
Proposed Rule to EDO Approval of Rulemaking Plan + 5 months -
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Public Comment Period Ends Approval of Rulemaking. Plan + 8 month.e
- Fina' Rule to~EDO ' Approval of Rulem, king Plan + 1 year
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Document Name:' 0:\DIPALO\DELMISCN\RULEPLN.RV2 5