ML20198M221

Discusses Initiation of Deliberate Misconduct Rule

ML20198M221
Person / Time
Issue date:	05/19/1995
From:	Lieberman J NRC OFFICE OF ENFORCEMENT (OE)
To:	Morrison D NRC OFFICE OF NUCLEAR REGULATORY RESEARCH (RES)
Shared Package
ML20198L674	List: ML20198L667 ML20198L765 ML20198L892 ML20198L903 ML20198L929 ML20198L965 ML20198L970 ML20198L985 ML20198L996 ML20198M005 ML20198M031 ML20198M042 ML20198M069 ML20198M084 ML20198M087 ML20198M097 ML20198M130 ML20198M136 ML20198M143 ML20198M160 ML20198M200 ML20198M221 ML20198Q028
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 AF35-2-045, AF35-2-45, NUDOCS 9801200026
Download: ML20198M221 (35)

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= UNITED STATES PW-g j NUCLEAR REGULATORY COMMISSION t WASHINGTON, D.C. 2066H001 h**' thy 19,1995

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MEMORANDUM TO: . David Merrison, Director Office of Nuclear Regulatory Research FROM: James Lieberman, Director _ ..

Office of Enforcement-

SUBJECT:

INITIATION OF RlRCHAKING In 1991,-the Commission adopted the Deliberate Misconduct Rule. 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 Commission requirements or for deliberately providing to the NRC, a

somelicensee,t respec material to the NRC.or contractor, information which is incomplete or inaccura Shortly after that rule took effect, the NRC staff issued an Order Revoking License to Dr. Randall C. Orem. The Order was issued after the staff learned that a. consultant had prepared Dr. Orem's l' cense application and included information that was incorrect as to the n.- of tne facility described in the. application. Dr. Orem requested a h,- and the matter was settled prior to commencement of the hearing. The commission reviewed and approved that settlement agreement, and underscored the importance that the Comission places on the completeness and accuracy of information submitted by both applicants and licensees. In the Orem decision, the Commission specifically addressed consultants.

In addressing the issues raised in the Orem matter, the staff realized that

>/ - the Deliberate Misconduct Rule, through an apparent oversight, does not1 address acolicants for a-license and applicant's contractors. In the fall of.

1994, OE and OGC commenced preparation ofJa simple rulemaking to address' this gap in the Commission's regulations A rulemaking plan was not prepared, 'as the work was well along when MD 6.3 was issued and approval of the EDO to proceed with the rulemaking is still needed.

Attachment A to this memorandum is'a draft rulemaking package that-proposes

_ modification of the Deliberate Misconduct Rule. The package includes a Commission paper, Federal Register Notice, and letters to Congressional committees addressing licensees and applicants forslicenses.> -It needs to be expanded to address applicants for and holders of NRC approvals,'such as Certificates of Compliance. OE will work with NMSS in developing _ this expansion.

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-; '!asd obtai>EDO corisent to. proceed with this rulemaking. The OE contact for. '

' # this projectsis Geoffrey D.' Cant, 415-3283. Please call me or Mr. Cant-if you =

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$b O (v Enr: The Commissioners from: James M. Taylor Executive Director for Operations lubhci: PR6POSIEDioDIFICATIONiT0iTHE!DELIBERATEMISCONDUCTRULE

-- .mg furpose: -r, gerx /46 To obtain Commission ap/ proval to publish for publi_c coe(vnent proposed changes totheDeliberateMifconductRule,foundat10CFR30.O,_40.10,50.5,60.11,The 70.10,.72.12,,110,7b,,andalse t: IFCf rl50:2; changes wo

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In 1991, the Commission adopted changes to NRC regulations that established 7 %.J the Deliberate Misconduct Rule, which took effect September 16, 1991. This rule placed licensed and unlicensed persons on notice that the Q to enforcement action for deliberate misconduct that causes, or,-but-for  %

detection, would have caused a licensee to be in violation of any of the Commission's requirements, or for deliberately providing to the NRC, a N N4

-licensee, or contractor, information which is incomplete or inaccurate in some respect material to the NRC. The rule established procedures to be used in issuing orders to licensed and unlicensed persons. ,

'On November 29, 1991, the NRC staff issued an Order Revoking License l (Effective Immediately) to Dr. Randall C. Orem. The order was issued after  !

the staff learned-that the facility that was described in Dr. Orem's I application for a license 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 for the safe handling and use of '

the. material. The Office of Investigations (01) investigation determined that <

information.concerning the facility had been included in the license

application prepared for Dr. Orem by a consultant. Dr. Orem requested a

-Contacts: G,- Cant, OE N_01E: TO BE MADE PUBLICLY AVAILABLE 415-3283 WHEN THE FINAL SRM IS MADE

-J. Lieberm a OE AVAILABLE 415-2741 t

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_The Commissioners hearing and the matter was settled before commencement of the liearing. The Commission reviewed and approved that settlement agreement, but underscored the importance:that the Comission places on the completeness and accuracy of-information submitted by both apalicants and licensees, stating: "We cannot overstate the importance of a licensee's or an applicant's duty to provide the -

Commission with accurate information." In-the Matter of Randall C. Orem.

Q A , CLI-93-14, 37 NRC 423, 427-(1993).

In attempting'to address the issues raised in the Orem matter, the staff

- realized that the Deliberate Misconduct Rule, through an apparent oversight, failed to address aonlicants for a license and applicants' contractors. -In the staff's response, dated March 28, 1994, to the Commissioners' SRM dated June 28, 1993, concerning issues raised by the Orem matter, the staff discussed the difficulty in reaching Dr. Orem's consultant from an enforcement-perspective.

Discussion:

The requirement for an applicant or licensee to provide complete and accurate information is expressed in the Commission's regulations at 10 CFR 30.9, 40.9, 50.9, 55.9,-60.10, 61.9a, 70.9, 71.6a, 72.11, and 110.7a. These completeness and accuracy regulations refer specifically to applicants and encompass all information submitted to the Commission or required to be maintained by the Commission's requirements. Furthermore, individuals who seek an NRC license through submission of incomplete or inaccurate information demonstrate the ,

same lack of integrity and should be subject to the same sanctions as those l who, through the submission of incomplete or inaccurate information, cause a licensee to be in violation of NRC requirements.

-In the Orem decision, the Commission specifically addressed consultants, noting that: "Even if the applicant turns to a consultant to help prepare the license application, as was the case here the applicant remains responsible for the contents of the application." 37' NRC 423, 430. . To ensure that ,

applicants and their employees and contractors-are -subject to enforcement action for wrongdoing, the staff proposes to modify the Deliberate Misconduct Rule where it appears in Title 10 CFR, Chapter I, to make this rule also apply toapplicantsfprNRClicenses,andtheiremployees,contractorsand subcontractorsW This would include consultants who assist in the preparation of license applications. The proposed rule would enable the NRC

~ to take individual enforcement action, such as issuin9 orders, against individuals who deliberately provide information that the individual knows to

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' The staff considered adding individuals, partnerships, corporations or j g) other entif.ies that-h~ ave applied,for'hnd/or obtained'NRC approvals'or cer,tifications to this rulemaking. However, th'e staff concliided that an. -

exhansinn.of'this' rulemaking to include ceftificate, holders and applicant (for

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NRC certificationstappfovals would require further' effort to justifydhe addition. . Theref6re, while the staff intendss t'o work on that expansion, the staff consideis it appropriate to move- forward with this mors' limited change

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be incomplete or inaccurate.

The Statement 'of Considerations provides that at the time of publication of the final rule, the staff will propose appropriate changes to the Enforcement Policy to address enforcement actions under the proposed rule. It is anticipated that only minor changes would be needed.

Coordination:

The Office of the General Counsel has no legal objection to this proposed .

rule.

Recommendation:

.That the Commission:

1. Approve publication in the Federal Register of the notice of the attached proposed rulemaking.

2. Note: ,

a. The proposed rulemaking will be published in the Federal Register allowing 75 days for public comment.

b. Because this proposed rulemaking falls within the scope of-10 CFR 51.22(c)(1) and (c)(3), neither an environmental impact statement nor an assessment has been prepared,

c. The Subcommittee on-Clean Air, Wet Lands, Private Property and Nuclear Regulation of the Senate Committee on Environment aid Public Works and the Subcommittee on Energy

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and Power of the House Committee on Commerce will be informed of the rulemaking by letter (Attachment 2),

d. A public announcement will be issued by the Office of Public Affairs when the proposed rulemaking is filed with the Office of the Federal Register.

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e. Because-the-proposed rule-does-not resultlin the

'" modification of or_ addition _to systems, structures,  ;

components, or design.of:a facility ... or the procedures j

...: required to design, construct, or operate a facility,"

the staff believes that the backfit rule, 10 CFR 50.109, *

, does not apply to the'proposedfrule.

James M. Taylor- .

-- Executive Director for Operations.

Attachments:-(1) Draft Federal Register Notice (2) Draft Congressional letters

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-NUCLEAR REGULATORY COMMISSION A m 10 CFR Parts 30,40,50,60,61.,j,70, 72, 110, and 150 ,

-RIN: 3150-AF35 Deliberate tisconduct by Unlicensed Persons Regarding Applications -

/. AGENCY: Nuclear Regulatory Comission. ,

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ACTION: Proposed Rule. tM [M Ap SUtMARY: The Nuclear Regulatory Comission ( RC or Commission) is proposing to revise its regulations to put applicants for NRC licenses and other

-unlicensed persons on notice that they may be= subject to enforcement action

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under the Commission's rule regarding deliberate misconduct. The deliberate mt.<Mfn A4 L 1 misconduct may involve providing information that the applican}sor individual knows:to be incomplete or inaccurate. The proposed rule would apply to the M m%b and to applicantsethemselves, fruJ J~

their employees, contractors, and subcontractors, including consultants.

DATES: The coment period expires (insert date 75 days from publication].

Comments received after this date will be considered if it is practical to do so, but the Comission is able to assure consideration only for comments received on or before this date.

-ADDRESSES: Send comments to: Secretary, U.S. Nuclear Regulatory Comission, Washington, DC 20555, Attention: Docketing and Service Branch.

Hand deliver comments to: One White Flint North, 11555 Rockville Pike, Rockville, MD 20852, between 7:45 a.m. and 4:15 p.m. on Federal workdays.

Comments received on proposed rules 'may be examined at the NRC Public Document .

' Room,.2120 L Street NW. (Lower Level), Washington, DC.

'Attactrnent 1

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FOR FURTHER INFORMATION CONTACT:1 Jame berman,~ Office of Enforcement, U.S.

Nuclear Regulatory Commission, Washington, DC 20555,. telephone: (301).

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Oa t) mr tv, L SUPPLEMENTARY'INFORMATION:

Background

On August 15,1991 (56 FR 40664), the NRC pub'ished a final rule that put licensed and unlicensed persons on notice that they may be subject to enforcement actions for deliberate misconduct that causes, or but for detection, would have caused a licensee-to be in violation of any of the Commission's requirements. Under the current rule, certain persons are also subject to enforcement actions for deliberately providing to the NRC, a licensee, or contractor, information which is incomplete or inaccurate in some

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respect material to the NRC. This Deliberate Misconduct Rule appears at 10 This rule

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and 1 CFR 30.10, 40.10, 50.5, 60.11, 61.9b, 70.10,

72.12, k "10.7b.

became effective September 16, 1991.

The Deliberate Misconduct Rule applies to any licensee or any employee 9

of1a licensee; and any contractor (including a supplier or consultant),

subcontractor, or any employee of a contractor or subcontractor, of any ll L

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• 3-licensee. Currently, itidoes not apply to an individual who is an applicant' for.an NRC license, or to a contractor, such as a consultant, to an applicant.

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- It-is-vitally:important that' all information provided to the NRC be_

- complete and_ accurate in all material respects. Section 186 of the Atomic Energy Act of_1954, as amended, provides'that "Any license may be revoked for any material false statement in the application or any statement of. fact-required _* * *." The Commission has promulgated rules concerning completeness and accuracy of-information that'specifically apply to information provided to the Commission by-an applicant for a license. See 10 CFR 30.9(a), 40.9(a),

50.9(a),-60,10(a), 61.9a(a), 70.9(a), 72.ll(a), and 110.7(a). Similarly, the provisions of subsection (b) of these rules refer to each applicant or licensee. Thus, both the Congress and the Commission have recognized the importance of receiving complete and accurate information from a-license applicant as well as from a licensee. Violation of these provisions can result in denial of the license application., or if appropriate, referral to the Department of Justice for consideration for criminal prosecution under 18 U.S.C. 1001.

The Deliberate Misconduct Rule permits the NRC to take individual action, such as issuance of an order, against an individual who deliberately provides'information that the individual knows to be incomplete or inaccurate.

However, through an apparent oversight when the Deliberate Misconduct Rule was

.- enacted, th'e rule failed to address applicants for licenses. There is no

- reason ny such a provision should not be equally applicable at the application stage of the relationship with_ the-NRC. Individuals or entities 1

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. who attempt to obtain'an NRC license by deliberately submitting incomplete .or

. inaccurate information demonstrate the-same lack.of integrity as those who deliberately submit. incomplete or inaccurat'e-infomation after a license has been issued.. The Commission has noted that it cunot overstate the importance of the duty to-provide the Commission with accurate information. In the Matter of Randall C. Orem. D.0., CLI-93-14, 37 NRC 423, 427 (1993).

The Propost. Regulations The Commission proposes to modify the Deliberate Misconduct Rule where it appears in Title 10 CFR, Chapter I, to make the rule apply to-applicants for a license, their employees, contractors, and subcontractors. This would include, .for example, a consultant engaged by an applicant to prepare a license application for such aetivities as radiography, well logging, c irradiation, teletherapy, and operating a research reactor. The Rule would apply to any applicant for any NRC license and the employees, contractors, and subcontractors of the applicant. Specifically, the proposed revisions to the Deliberate Misconduct Rule appear in 10 CFR 30.10, 40.10,.50.5, 60,11, 61.9b, 70.10, 72.12,-and 110.7b. A revision also appears in 10 CFR 150.2 that would incorporate the proposed changes to the Delit'erate Misconduct Rule in the

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requirements pertaining to Agreement States.

I At; the time of final rulemaking~ on this matter, the Commission also

' intends to modify its Enforcement Policy to address enforcement actions- 1 against applicants and their employees'and contractors.

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w Environmental Impact: Categorical Exclusion

-The NRC has determined that this proposed rule relates-to enforcement.

matters and,- therefore, falls within the scope of 10 CFR 51.22(c)(1)-'and -

(c)(3). - Therefore, neither an _ environmental impact statement nor an environmental assessment has been prepared for' this proposed rule.

Paperwork Reduction Act Statement

.This proposed rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501, et seq.). Existing requirements were approved by the Office of Management and Budget, approval number: 3150-0136.

Regulatory Analysis The Nuclear Regulatory Commission implemented its statutory authority to issue enforcement actions against unlicensed persons whose deliberate misconduct causes a licensee to be in violation when NRC adopted the

- Deliberate Misconduct Rule that became effective on September _16, 1991. This -

rule also addressed individuals who deliberately provide incomplete or inaccurate information to the NRC. As adopted, the rule applies to. licensees,

. . .their: employees,iand their contractors, including suppliers, consultants, and i sidicontractors.) Through an ~ oversight, the rule does not apply to applicants m&Af n aEfan Nonetheless, it is-

['pl#,)/oria js l) fequally importantlicensejor tlieir contractors and consultants j  ;

that this class of persons provide complete and accurate

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informationtotheNRC.Landbesubjectioenforcementactionfordeliberate .

. misconduct.

s The alternatives available to the Commission are to propose a rule;or to h L A- % p - - - - 4 .

take no action.- Because ginstancer,hn h n identifiedjin which, a consultant p=, __

to'an applicant for a license provided: inaccurate information that was , g y g sp n &&yy v ys q, &I included:in the license application,*there es,a clear need for the agency:to ,

have authorit'y to address these situations in the future. Accordingly, the alternative to-take no action was rejected, The proposed rule would enable Lthe Commission to take appropriate enforcement action against an applicant for-an NRC license or a' person employed by an applicant who-deliberately violates Commission requirements. ' The effect of available enforcement sanctions should

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ensure the accuracy of information submitted and reduce tje, probability of W @6 $_ w j 8 deliberate misconduct by applicants 4and their employees and. contractors, Regulatory-Flexibility Certification In accordance with the Regulatory Flexibility Act of.1980, 5. U.S.C.

605(b),-the Commission. certifies that this rule, if adopted, will not have a

'significant economic-impact on a substantial number of small entities. The

-proposed' rule puts unlicensed persons who apply for, or consult for those who apply .'or, an NRC inense, on notice that they are subject to the Deliberate

' MisconductLRule,- by:which they are subject to civil enforcement action if they

/

. deliberately'causeia: licensee, or an applicant for a licende,T to be inb V  :: violation ~of. NRC requirements. This includes the' requirements to provide

! complete and accurate'information.- - Because it is- a: criminal offense under 18-

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A U.S.C.1001 to provide false information to the government, the proposed rule, by itself, does not impose any additional obligations on entities, that r..ay fall within the definition of "small entities" as set forth in section 603(3) of the ..egulatory 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 size standar9s adopted by the NRC on December 29, 1985 (50 FR 50241).

Backfit Analysis The NkC has determined that the backfit rule, 10 CFR 50.109, does not apply to this proposed rule, and, threfore, a backfit analysis is not required for this proposed rule, because these amendments do not involve any provisions which would impose backfits as defined in 10 CFR 50.109(a)(1).

List of Subjects 10 CFR part 30 - Byproduct material, Criminal penalties, Government contracts, Intergovernmental relations, Isotopes, Nuclear materials, Radiation protection, Reporting and recordkeeping requirements.

10 CFR Part 40 - Criminal penalties, Government contracts. Hazardous mt.terials transportation, Nuclear materials, Reporting and recordkeeping requirements. Source material, Uranium.

10 CFR Part 50 - Antitrust, Classified information, Criminal por.alties,

. 8-Fire protection,' Intergovernmental relations, Nuclear power plants and reactors, Radiation protection, Reactor siting criteria, Reporting and recordkeeping requirements.

10 CFR Part 60 - Criminal penalties, High-level waste, Nuclear power plants and reactors Nuclear m'aterials, Reporting and recordkeeping requirements, Waste treatment and disposal.

10 CfR Part 61 - Criminal penalties, Low-level waste, Nuclear materials, Reporting and recordkeeping requirements, Waste treatment and disposal.

10 CFR Part 70 - Criminal penalties, Hazardous materials transportation, Material control and accounting, Nuclear materials, Packaging and containers, Radiation protection Reporting and recordkeeping requirements, Scientific equipment, Security measures, Special nuclear material.

10 CFR Part 72 - Manpower training programs, Nuclear materials, Occupational safety and health, Reporting and recordkeeping requirements, Security measures, Spent fuel.

~10 CfR Part 110 - Administrative practice and procedure, Classified information, Criminal penalties, Export, Import, Intergovernmental relations, Nuclear materials, Nuclear power plants and reactors, Reporting and recordkeeping requirements, Scientific equipment.

+ 10 CfR Part 150 - Criminal. penalties, Haz:rdous materials 1

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transportation, Intergovernmental relations, Nuc'. ear materials, Reporting and recordkeeping requirements, Security measures, Source material, Special nuclear material.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amenced; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C, 552 and 553; the NRC is proposing to adopt the 15 following amendments to 10 CFR Parts 30, 40, 50, 60, 61, 70,*72, 110, and 150.

PART 30 - RULES OF GENERAL APPLICA8ILITY TO DOMESTIC LICENSING OF 8YPRODUCT MATERIAL

1. The authority citation for Part 30 continues to read as follow AUTHORITY: Secs. 81, 82, 161, 182, 183, 186, 68 Stat. 935, 948, 953, 954, 955, as an .nded, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2111, 2112, 2201, 2232, 2233, 2236, 2282); secs. 201, as amended, 202, 206, 88 Stat.

1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5d42, 5846).

Section 30.7 also issued under Pub. L. 95-60), sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123, (42 U.S.C. 5851).

Section 30.34(b) also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 30.61 also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

2. Section 30.10 is revised to read as follows:

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, 6 30.10 Deliberate miscondyet.  ; ,

, f, (a) Any-licensee, appilcant

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• or any employee of a licensee or applicant;'and any contractor (including a supplier or consultant),

subcontractor, or-any employee of a contractor or subcontractor, of any j licensee or applicant, who knowingly provides to' any li'censee or applicant, ,

contractbr, or subcontractor, components, equipment, materials, or other goods .

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or services, that relate to a licensee's or applicant's, activities subject to' -

this part; may not:

(1) Engage in deliberate misconduct thrt causes or, but for detection, .

would have caused, a licensee or applicant to be in violation of any rule, regul ati n.. , or order, or any term, condition, or limitation of any license, issued by the Commission, or l (2) Deliberately submit to the NRC, a licensee or applicant, or a h licensee's or applicant's contractor or subcontractor, information that the person submitting the information knows to be incomplete or inaccurate in some

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respect material to the NRC.

(b) A person who violates paragraph (a)(1) or (a)(2) of this section may be subject to enforcement action in accordance with the procedures in 10 CFR part'2,.subpart B. ,

(c) For purposes of ptragraph (a)(1) of this section, deliberate misconduct by a person means an intentional act-or omission that the person knows:

(1)' Would cadse a licensee or applicant to be in violation of any rule, f regulation, or order, or. any. term, condition, or limitation, of any license

• issued by:the Commission, or (2)Constitutesaviolationofarequirement, procedure, instruction, I

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contract, purchase order or policy of a licensee, applicant, contractor, or subcontractor.

PART 40 - DOMESTIC LICENSING OF SOURCE MATERIAL

3. The authority citation for Part 40 continues to read as follows:

AUTHORITY: Secs. 62, o3, 64, 65, 81, 161, 182, 183, 186, 68 Stat. 932, 933, 035, 948, 953, 954, 955, as amended, secs. lle(2), 83, 84, Pub. L.95-604, 92 Stat. 3033, as amended, 3039, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2014(e)(2), 2092, 2093, 2094, 2095, 2111, 2113, 2114, 2201, 2232, 2233, 2236, 2282); sec. 274, Pub. L.86-373, 73 Stat. 688 (42 U.S.C. 2021); secs. 201, es amend:.d. 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C.

5841, 5842, 5846); sec. 275, 92 Stat. 3021, as amended by Pub. L.97-415, 96 Stat. 2067 (42 U.S.C. 2022).

Sect' ion 40.7 also issued under Pub. L.95-601, sec. 10, 92 Stat. 2931 as amended by Pub. L. 102-486, sec 2902, 10u Stat. 3123, (42 U.S.C. 5851).

Section 40.31(g) also issued under sec.122, 68 Stat. 939 (42 U.S.C. 2152).

Section 40.46 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C.

2234). Section 40.71 also issued under sec. 187, 68 Stat. 955 (42 U.S.C.

2237).

4. 4 ':'.' ~ 40.10 is revised to read as follows:

i 40.10 ;,es ikrate misconduct.

(a) Any licensee, applicant for a license, or any employee of a licensee

l 12 - l I

or applicant; and any contractur (including a supplier or consultant),

subcontractor, or any_empYoyee of a contractor or subcontractor, of any

~

licensee or applicant, who knowingly provides to any licensee or applicant, j contractor, or subcontractor, components, equipment, materials, or other goods . {

or services, that relate to a licensee's or applicant's activitics subject to  !

this part; may not:

(1) Engage in deliberate misconduct that causes or, 'ut for detection, would have caused, a licensee or applicant to be in violatto; of any rule, regulation, or order, or any term, condition, or limitation of any license, issued by the Commission, or  ;

(2) Deliberately submit to the NRC, a licensee or applicant, or a licensee's or applicant's contractor or subcontractor, information that the person submitting the information knows to be incomplete or inaccurate in some respect material to the NRC, (b) A person who violates paragraph (a)(1) or- (a)(2) of this section may be subject to enforcement action in accordance with the procedures in 10 CFR part 2, subpart B.  :

(c)Forpurposesofparagraph(a)(1)ofthissection, deliberate misconduct by a person means an intentional act or omission that the person

knows:

(1) Would cause a licensee or applicant to be in violation of any rule, regulation, or order, or any term, condition, or limitation, of any license issued by the Commission, or

^

(2) Constitutes a^ violation of a requirement, procedure, instruction, contract, purchase order or policy of a licensee, applicant, contractor, or subcontractor. ,

--*.. A

" .,,y-,

PART 50 - DOMESTIC LICENS!N". OF PRODUCTION AND UTILIZATION FACILITIES

- 5. The authority citation for Part 50 continues to read as follows:

AUTHORITY: Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 68 Stat.

936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 1244, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846).

Section 50.7 also issued under Pub. L.95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat 3123, (42 U.S.C. 5851).

Section 50,10 also issued under secs. 101, 185, 68 Stat. 936, 955, as amended (42 U.S.C. 2131, 2235); sec. 102, Pub. L,91-190, 83 Stat. 853 (42 U.S.C.

4332). Sections 50.13, 50.54(dd), and 50.103 also issued under sec. 108, 68 r

Stat. 939, as amended (42 U.S.C. 2138). Ecctions 50.23, 50.35, 50.55, and 50.56 also issued under sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a, 50.55a and Appendix Q also issued under sec.102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.34 and 50.54 also issuad under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58, 50.91, and 50.92 also issued under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C. 2239). Section 50.78 L

also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Sections 50.80 -

50.81 also issued under sec. 184, 68 Stat, 954, as amended (42 U.S.C. 2234).

Appendix F also issued under sec. 187, 68 Stat. 955 (42 U.S.C 2237).

6. Section 50.5 is revised to read as follows:

l:

l

. . l 14 -  !

l 50.b Deliberate misconduct.  ;

(a) Any licensee, applicant for a license, or any employee of a licensee or applicant; and any contractor (including a supplier or consultant),

subcontractor, or any employee of a contractor or subcontractor, of any licensee or applicant, who knowingly provides to any licensee or applicant, contractor, or subcontractor, components, equipment, materials, or other goods or services, that relate to a licensee's or applicant's activities subject to this part; may not:

(1) Engage in deliberate misconduct that causes or, but for detection, would have caused, a licensee or applicant to be in violation of any rule, regulation, or order, or any term, ccndition, or limitation of any license, '

issued by the Commission, or (2) Deliberately submit to the NRC, a licensee or applicant, or a l t

licensee's or applicant's contractor or subcontractor, information that the person submitting the information knows to be incomplete or inaccurate in some respect material to the NRC.

(b) A person who violates paragraph (a)(1) or (a)(2) of this section may be subject to enforcement action in accordance with the procedures in 10 CFR part 2, sebpart B.

(c) For purposes of paragraph (a)(1) of this section, deliberate misconduct by a person means an intentional act or omission that the person knows:

(1) Would cause a licensee or applicant-to be in violation of any rule, regulation, or' order, or any term, condition, or limitation, of any license issued by the Commission, or (2) Constitutes a violation of a requirement, procedure, instruction,

, - ...,w .~., .,or , - , .so

contract, purchase order or policy of a licensee, applicant, contractor, or subcontractor.

PART 60 - DISPOSAL'0F HIGH-LEVEL RADIDACTIVE WASTES IN GE0 LOGIC REPOSITORIES

7. The authority citation for Part 60 continues to read as follows:

AUTHORITY: Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat.

.929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071, 2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88 Stat. 1244, 1246 (42 U.S.C. 5842, 5846); secs, 10 and 14 Pub. L.95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5851); sec. 102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C.-

4332); secs. 114, 121, Pub. L.97-425, 96 Stat. 22139, 2228, as amended (42 U.S.C. 10134, 10141) and Pub. L.- 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C.

5851).

8. Section 60.11 is revised to read as follows:

-l 60.11 Deliberate misconduct.

-(a)'Any licensee, applicant for a license, or any employee of a licensee or. applicant; and any contractor'(including a supplier or consultant),

subcontractor. or any employee of a contractor or subcontractor, of any licensee or applicant, wh'o knowingly provides to any licensee or applicant, contractor._or~ subcontractor, components, equipment, materials, or other goods

oriservices, that_ relate to a licensee's or applicant's activities subject to 1

', . o l

this part; may not:

(1) Engage in deliberate misconduct that causes or, but for detection, would have caused, a licensee or applicant to be in violation of any rule, l l

regulation, or order, or any term, condition, or limitation of any license, issued by the Commission, or (2) Deliberately submit to the NRC, a licensee or applicant, or a licensee's or applicant's contractor or subcontractor, information that the person submitting the information knows to be incomplete or inaccurate in some respect material to the NRC.

(b) A person who violates paragraph (a)(1) or (a)(2) of this section may be subject to enforcement action in accordance with the procedures in 10 CFR part 2, subpart B.

(c) For purposes of paragraph (a)(1) of this section, deliberate mi:, conduct by a person means an intentional act or omission that the person knows:

(1) Would cause a licensee or applicant to be in violation of any rule, ,

regulation, or order, or any term, condition, er limitation, of any license issued by the Commission, or (2) Constitutes a violation of a requirement, procedure, instruction, c'Jntract, purchase order or policy of a licensee, applicant, contractor, or subcontractor.

PART 61 - LICENSING REQUIREMENTS FOR LAND DISPOSAl. OF RADI0 ACTIVE WASTE

9. The authority citation for Part 61 continues to read as follows:

17 - i AUTHORITY: Secs. 53, 57, 62,'63, 65, 81, 161, 182, 183, 68 Stat. 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2073, 2077, 2092, 2093, 2095, 2111,-2201, 2232, 2233); secs. 202, 206, 88 Stat. 1244, 1246 (42 U.S.C.

5842, 5846); secs. 10 and 14, Pub. L.95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5851) and Puo. L. 102-486,'sec 2902, 106 Stat. 3123, (42 U.S.C. 5851).

10. Section 61.9b is revised to read as follows:  :

5 6i.9b Deliberate misconduct.

(a) Any licensee,-applicant for a license, or any employee of a licensee or applicant; and any contractor (including a supplier or consultant),

subcontractor, or any employee of a contractor or subcontractor, of any licensee or applicant, who knowingly provides to any licensee or applicant, contractor, or subcontractor, components, equipment, materials, or other goods or services, that relate to a licensee's or applicant's activities subject to ,

this part; may not:

g (1) Engage in deliberate misconduct that causes or, but for detection, would have caused, a licensee or applicant to be in violation of any rule, regulation, or order, or any term, condition, or limitation of any license, issued by the Commission, or (2) Deliberately submit to the NRC, a licensee or applicant, or a licensee's or applicant's contractor or subcontractor, information that the

. person submitting the information knows to be incomplete or inaccurate in some 3

respect material to the NRC.

(b) A person who violates paragraph (a)(1) or (a)(2) of this section may be subject to enforcement action in accordance with the ,nrocedures in 10 CFR i

,6- ,

part 2, subpart B.

(c)forpurposesofparagraph(a)(1)ofthissection, deliberate misconduct by a person means an intentional act or omission that the person knows:

(1) Would cause a licensee or applicant to be in violation of any 'e, regulation, or order, or any term, condition, or limitation, of any licei. .

Issued by the Commission, or (2) Constitutes a violation of a requirement, procedure, instruction, contract, purchase order or policy of a licensee, applicant, contractor, or subcontractor.

PART 70 - DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL

11. The authority citation for Part 70 continues to read as follows:

AUTHORITY: Secs. 51, 53, 161, 182, 183, 68 Stat. 929, 930, 948, 953, 954, as amended, sec. 234, 83 Stat. 444, as amended, sec. 1701, 106 Stat.

2951, 2952, 2953 (42 U.S.C. 2071, 2073, 2201, 2232, 2233, 2282, 2297f); secs. 201, as amended, 202, 204, 206, 88 Stat. 1242, as amended, 1244, 1245, 1246 (42 U.S.C. 5841, 5842, 5845, 5846).

Sections 70.l(c) and 70.20a(b) also issued under secs. 135,141, Pub. L.97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 70.7 also issued under Pub. L.95-601, sec. 10, 92 Stat. 29h (42 U.S.C. 5851). Section 70.21(g) also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 70.31 also issued under sec. _57d. Pub. L.93-377, 88 Stat. 475 (42 U.S.C.

2077). Section; 70.36 and 70.44 also issued under sec.184, 68 Stat. 954, as

(.**

amended (42 U.S.C. 2234). Section 70.61 also issued under secs, 186, 187, 68 Stat. 955 (42 U.S.C. 2236, 2237). Section 70.62 also issued under sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138).

12. Section 70.10 is revised to read as follows:

I 70.10 Deliberate misconduct.

(a) Any licensee, applicant for a license, or any employee of a licensee ,

or applicant; and any contractor (including a supplier or consultant),

subcontractor, or any employee of a contractor or subcontractor, of any licensee or applicant, who knowingly provides to any licensee or applicant, contractor, or subcontractor, component::, equipment, materials, or other goods or services, that relate to a licensee's or applicant's activities subject to this part; may not:

(1) Engage in deliberate misconduct that causes or, but for detection, would have caused, a licensee or applicant to be in violation of any rule, regulation, or order, or any term, condition, or limitation of any license, issued by the Commission, or (2) Deliberately submit to the NRC, a licensee or applicant, or a licensee's or applicant's contractor or subcontractor, information that the person submitting the information knows to be incomplete or inaccurate in some respect material to the NRC.

(b) A person who violates paragraph (a)(1) or (a)(2) of this section may be subject to enforcement action in accordance with the procedures in 10 CFR part 2, subpart B.

(c) For purposes of paragraph (a)(1) of this section, deliberate

misconduct by a person means an intentional act or omission that the person  ;

knows* -

(1)' Would cause a' licensee or applicant to be in violation of any rule, regulation, or order, or any term, condition, or limitation, of any license issued by the Commission, or (2) Constitutes a violation cf a requirement, procedure, instruction.  :

contract, purchase order or policy of a licensee, applicant, contractor - or  :

subcontractor.

& l '.

PART 72 - LICENSING REQUIREMENTS FOR THE INDEPENDENT STORAGE OF SPENT NUCLEAR FUEL AND HIGH-LEVEL RADI0 ACTIVE WASTE 1

f

13. The authority citation for Part 72 continues to read as follows:

AUTHORITY: Secs. 51, 53,.57, 62, 63, 65, 69, 81, 161, 182, 183, 184, 186, 187,.189, 68 Stat. 929, 930, 932, 933, 934, 935, 948. 953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2071, 2073,-2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233, 2234, 2236, 2237, 2238, 2282); sec. 274, Pub. L.86-373, 73 Stat. 688, as amended (42 U.S.C. 2021); sec. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244,124t, (42 U.S.C. 5841, 5842, 5846); Pub. l .95-601, sec.10, 92 Stat. 2951 (42 U.S.C 5851); sec.

~ 102. Pub. L.91-190, 83 Stat. 853 (42 U.S.C. 4332); Secs. 131, 132, 133..135, 137, 141, Pub. L.97-425, 96 Stat. 2229, 2230, 2232, 2241 sec. 148 Pub. L. >

100-203, 101 Stat. 1330-235 (42 U.S.C. 10151, 10152, 10153, 10155, 10157.

10161,10168).

Section 72.44(g) also-issued under secs. 142(b) and 148(c), (d), Pub. L.

(

v. . , - ,y . _ w _ y ., . , - . _ , _ ., , , ,_. .,m. . , ,m., y ., -4 , . - - .--,-., -

100-203, 101 Stat. 1330-232, 1330-236 (42 U.S.C. 10162(b), 10168(c), (d)).

Section 72.46 also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L.97-425, 96 Stat. 2220 (42 U.S.C. 10154). Section 72.96(d) also issued under se:. 145(g), Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C.

10165(g)). Subpart J also issued under secs. 2(2),2(15),2(19),117(a),

141(h), Pub. L.97-425, 96 Stat. 2202, 2203, 2204, 2222, 2224'(42'U.S.C.

10101, 10137(a) 10161(h)). Subparts X and L are also issued under sec.133, 98 Stat.- 2230 (42 U.S.C. 10153) and sec. 218(a), 96 Stat. 2252 (42 U.S.C.

10198).

14. Section 72.12 is revised to read as follows:

$ 72.12 Deliberate misconduct.

(a) Any licensee, applicant for a license, or any employee of a licensee or applicant; and any contractor (including a supplier or consultant),

subcontractor, or any employee of a contractor or subcontractor, of any licensee or applicant, who know!ngly provides to any licensee or applicant, contractor, or subcontractor, components, equipment, materials, or other goods or services, that relate to a licensee's or applicant's activities subject to this part; may not:

(1) Engage in deliberate misconduct that causes or, but for detection, would have caused, a licensee or applicant to be in violation of any rule,

. regulation, or order,'or any term, condition, or limitation of any license, l issued by the Commission, or (2) Deliberately submit to the NRC, a licensee or applicant, or a

-licensee's or applicant's contractor or subcontractor, information that the e

L-

. i i

. person submitting the information knows-to be'incomp1ete or inaccurate in some respect material >to the NRC.

(b) A person who violates paragraph (a)(1) or (a)(2) of this section may be subject to enforcement action in accordance with the yrocedures in 10 CFR part 2, subpart B.-

-(c) For purposes of paragraph (a)(1) of this section, deliberate misconduct by a person means an intentional act or omission that the person

- knows:

(1) Would cause a licensee or applicant to be in violation of any rule, regulation, or order, or any term, condition, or limitation, of any license issued by the Commission, or (2) Constitutes a violation of a requirement, procedure, instruction, contract, purchase order or policy of a licensee, applicant, contractor, or subcontractor.

PART 110 - EXPORT AND IMPORT OF NUCLEAR EQUIPMENT AND MATERIAL

15. The authority citation for Part 110 continues to read as follows:

AUTHORITY: Secs. 51, 53, 54, 57, 63, 64, 65, 81, 82, 103, 104, 109, Ill, 126, 127, 128, 129, 161, 181, 182, 183, 187, 189, 68 Stat. 929, 930, 931, 932, 933, 936,_937, 948,=953, 954,- 955, 956, as amended _(42 U.S.C. 2071, 2073, 2074; 2077, 2092-2095, 2111, 2112, 2133, 2134,'2139, 2139a, 2141, 2154-2158, 2201, 2231-2233, 2237, 2239); sec. 201, 88 Stat. 1242, as amended (42 U.S.C.

. 5841; sec 5, Pub. L.--101-575, 104 Stat 2835-(42 U.S.C.2243).

.'etions' 110.l(b)(2) and Il0.1(b)(3) also issued under Pub. L.- 96-92, 93 _

's'-

1

,.4 .

Stat. 710 (22 U.S.C. 2403). Section 110.11 also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152) and secs. 54c and 57d., 88 Stat. 473, 475 (42 U.S.C. 2074). Section 110.27 also issued under sec. 309(a), Pub. L.99-440.

Section 110.50(b)(3) also issued under sec. 123, 92 Stat. 142 (42 U.S.C.

2153). Section 110.51 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 110.52 also issued under sec.186, 68 Stat. 955 (42 U.S.C. 2236). Sections 110.80-110.113 also issued under 5 U.S.C. 552, 554.

Sections 110.130-110.135 also issued under 5 U.S.C. 553. Sections 110.2 and 110.42 (a)(9) also issued under sec. 903, Pub. L. 102-496 (42 U.S.C. 2151 et seq.),

16. Section 110.7b is revised to read as follows:

i llo.7b Deliberate misconduct.

(a) Any licensee, applicant fe, a license, or any employee of a licensee or applicant; and any contractor (including a supplier or consultant),

subcontractor, or any employee of a contractor or subcontractor, of any licensee or applicant, who knowingly provides to any licensee or applicant, contractor, or subcontractor, components, equipment, materials, or other goods or services, that relate to a licensee's or applicant's activities subject to this part; may not:

(1) Engage in deliberate misconduct that causes or, but for detection, would have caused, a licensee or applicant to be in violation of any rule, re901ation, or order, or any term, condition, or limitation of any license, issued by the Commission, or (2) Deliberately submit to the NRC, a licensee or appli' .nt, or a

(

c ,

3...

I licensee's or applicant's contractor or subcontractor, information that the person submitting the information knows to be incomplete or inaccurate in some respect material to the NRC.

(b) A person who violates paragraph (a)(1) or (a)(2) of this section may be subject to enforcement action in accordance with the procedures in 10 CFR part 2, subpart B.

(c) For purposes of paragraph (a)(1) of this section, deliberate misconduct by a person means an intentional act or omission that the person knows:

(1) Would cause a licensee or applicant to be in violation of any rule, regulation, or order, or any term, condition, or limitation, of any license issued by the Commission, or (2) Constitutes a violation of a requirement, procedure, instruction, contr:et, purchase order or policy of a licensee, applicant, contractor, or subcontractor.

PART 150 - EXEMPTIONS AND CONTINVED REGULATORY AUTHORITY IN AGREEMENT STATES AND IN OFFSHORE WATERS LNDER SECTION 274

- 17. The authority citation for Part 150 continues to read as follows:

AUTHORITY: Sec. 161, 68 Stat. 948, as ame,ded, sec. 274, 73 Stat. 688 (42 U.S.C. 2201, 2021); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841).

Sections 150.3, 150.15, 150.15a, 150.31, 150.32 also issued under secs.

11e(2), 81, 68 Stat. 923, 935, as amended, secs. 83, 84, 92 Stat. 3033, 3039 L _. -

. e , .-

(42 U.S'.C. 2014e(2), 2111, 2113, 2114). Section 150.14 also issued under sec.

53, 68 Stat. 930, as amended (42 U.S.C. 2073). Section 150.15 also issued under secs. 135, 141, Pub.L.97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 150.17a also issued under sec. 122, 68 Stat. 939 (42 U.S.C.

2152). Section 150.30 also issued under sec. 234, 83 Stat. 444 (42 U.S.C.

2282).

18. Section 150.2 is revised to read as follows:

1 150.2 Scope.

The regulations in this part apply to all States that have entered into agreements with the Commission or the Atomic Energy Commission pursuant to subsection 274b of the Act. This part also gives notice to all persons who knowinglyprovidetoanylicensee,applicantiforalicense, contractor,or

-subcontractor, components, equipment, materials, or other goods or services, 7,

thatrelatetoalicensee'rforapplicant'sactivitiessubjecttothispart, i

L

,..,r, .

• .4 a that they may be individually subject to NRC enforcement action for violation of il 30.10, 40.10, and 70.10.

Dated at Rockville, MD, this day of , 1995.

For the Nuclear Regulatcry Commission.

John C. Hoyle, Secretary of the Commission.

l 1

II I

k.. . . . . .

_ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ - . _ _ _ _ _ _ _ _ _ _ _ _ _ _-. -___------J

[

. .o e.

The Honorable Dan Schaefer, ~' airman Subcommittee on Energy and f ir Committee on Commerce United States House of Representatives Washington, D.C. 70515

Dear Mr. Chairman:

Enclosed for the information of the subcommittee is a crnv of a notice of proposed rule to be published in the Federal ger tar. ine ,1uclear Regulatory Commission is proposing to amend its regulatia s put applicants for NRC licenses and other unlicensed persons doing A . for applicants on notice that they may be subject to enforcement action undet 'he Commission's existing rules regarding deliberate misconduct. The del) ' rate misconduct would involve providing information that the applicant or individual knows to be incomplete or inaccurate and action that deliberately causes violations of NRC requirements. The proposed rule would apply to the applicants themselves, and to their employees, contractors, and subcontractors, including consultants.

The Commission is issuing the proposed rule for public comment.

Sincerely, Dennis K. Rathbun, Director Office of Congressional Affairs cc: The Honorable Frank Pallone Attachment 2 l

k .

,,,e g , . . -

The Honorable Lauch Faircloth, Chairman Subcomittee on Clean Air, Wet Lands, Private Property and Nuclear Regulation Comittee on Environment and Public Works United States Senate Washington, D.C. 20510

Dear Mr. Chairman:

Enclosed for the information of the subromittee is a copy of a notice of pronosed rule to be published in the EedirAl Reaister. The Nuclear Regulatory Comission is proposing to amend its regu!ations to put applicants for NRC licenses and other unlicensed persone doin t work for applicants on notice that they maj '.'e subject to enforcement .ction inder the Commission's existing rules regarding deliberate misconduci. Th deliberate misconduct would involve providing information that it i anrsicant or individual knows to be incomplete or inaccurate and action that deliberately causes violations of nRC P requirements. The proposed rule would apply to the applicants themselves, and to their employees, contractors, and subcontractors, including consultants.

The Commission is issuing the proposed rule for public comment.

Sincerely,

! Dennis K. Rathbun, Director l cc: The Honorable Bob Graham Attachment 2

1 NRC FORM SC (7 94) j NRCMD 3.67 -

COVER SHEET FOR CORRESPONDENCE USE THIS COVER SHEET TO PROTECT ORIGINALS OF MULTI-PAGE CORRESPONDENCE

-_ -. _,