ML20203J661
| ML20203J661 | |
| Person / Time | |
|---|---|
| Issue date: | 11/17/1997 |
| From: | Mcgaffigan E NRC COMMISSION (OCM) |
| To: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| Shared Package | |
| ML20203J606 | List: |
| References | |
| FRN-57FR1890, FRN-63FR1890 AF35-2-007, AF35-2-7, SECY-97-252-C, NUDOCS 9712220037 | |
| Download: ML20203J661 (5) | |
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A F F l R M A T I O N VOTE RESPONSE SHEET TO:
John C. Hoyle, Secretary I
FROM:
COMMISSIONER MCGAFFIGAN
SUBJECT:
SECY-97-252 - FINAL RULE - DELIBERATE MISCONDUCT BY UNLICENSED PERSONS Approveu
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Disapproved Abstain Not Participating Request Discussion COMMENTS:
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- certificationsi or combin68 licenses for nuclear pown plants issued under 10 CFR Part 52;
.w aWicants for, and hoiciers of,' certificates of registration issued under Parts 30 and 32; and applicants fori and holders of, quality r seurance program approvals issued under Part 71; and to the employees, contractors, subcontractors and consultants of all tha above categories of persons, implements the Commission's authority under the AEA to i
issue regulations and orders to any person (defined in Sectien 11s c* the AEA to include, e.g.,"an individual, corporation, firm, or a Federal, State, or local agency) who engages in conduct affecting activities within the Commission's subject matter jurisdiction, p
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'In brief, Section 1611 of the AEA provides broad authority to issu regulations and i
orders as the Commission deems necessary to govem any activity authorized pursuant to the AEA in order to protect public health and safety. Section 161b of the AEA similarly authorizu the Commission to issue regulations and orders to impose " standards and instructions" on persons to govem the possession and use of special nuclear material, source material, and byproduct material, as may be necessary or desirable to provide for the common defense and security and protect public health and safety. Section 234 of the AEA authorizes the NRC to impose civil penalties on certain unlicensed persons for 4
violating the NRC's substantive requirements. Section 234a of the AEA reads as follows:
Any person who (1) vioistes any licensing or certification provision of Sections 53,
--57,62, 63,81,82,101,103,104.107,100, or 1701 or any rule, regulation, or order issued thereunder, or any term, condition, or limitation'of any license or certification issued thereunder, or (2) commits any violation for which a license may be revoked under Section 186, shall be subject to a civil penalty,....
Tha licensing provisions listed in Section'234a generally prohibit the possession, use,
-receipt, or tr:;nsfer of nuclear materials or facilities unless authorizcd by and in accordance with a license.
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securate when made but later turns out to be erroneous because of newly discovered information or advances in technology. Also, the Commission recognizes that oral information may in some situations be less reliable. This is addressed in Section IX of the Enforcement Policy.
Finally, the Commission does not take lightly its responsibility in this area and carefully considers each action involving an individual. As the Commission stated in the original Deliberate Misconduct Rule:
"It would be an erroneous reading of the final rule on deliberate micconduct to conclude that conscientious people may be subject to personalliability for mistakes. The Commission realizes that people may make mistakes while acting in good faith.
Enforcement actions directly against individuals are not to be used for activities caused by merely negligent conduct. These persons should have no fear of individual liability under this regulation, as the rule requires that there be deliberate misconduct before the rule's sanctions may be imposed. The Commission recognizes,... that enforcement actions involving individui.s are significant actions that need to be closely controlled and judicious,1y applied." (See 56 FR 40664,40681)
Comrnent: One commenter, the Nuclear Energy Institute (NEI), believes that the NRC is exceeding its statutory authority under the Atomic Energy Act of 1954 (the AEA) in promulgating these amendments to the Deliberate Misconduct Rule because, in the view of NEl, authority over non-licensee persons was not provided by Congress other than in limited circumstances carved out in the AEA as exceptions. In particular, NEl believes that Section 1611(3) of the AEA does not provide jurisdiction over non-licensee persons because it does not contain the operative phran "any person" and therefore, NEljpptr6s,
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L-comment' objecting to the original Deliberate Misconduct Rule, "a person with the requisite knowledge who deliberately provides false or inaccurate information that is material to the
- NRC presents a health end safety concern within the NRC's regulatory sphere." 56 FR l
40670. The fact that no actual violation has occurred, or would have occurred but for detection, has no bearing on whether, from a health arid safety standpoint, that person should be involved in nuclear activities. Although, the commenter is correct that the standard permits the NRC to take enforcement action whether or not a violation has J
occurred, or would have occurred but for detection, the Commission does not believe that this fact renders the standard overly broad.
Comment: One commenter, the JAl Corporation, proposed that the scope of the proposed rule be broadened to include persons submitting information pursuant to the notification requirements of 10 CFR Part 21. The commenter, apparently believing that such persons are not presently covered by the Deliberate Misconduct Rule, pointed to the unfairness that would exist if persons who knowingly submit incomplete or inaccurate information to licensees are penalized but persons who knowingly submit incomplete or inaccurate information to the NRC regarding defects or non-compliance under Part 21 are not penalized.
M Resoonse: Under 10 CFR Part 21, certainpqMfs' f persons, e.g., individual directors or responsible officers of a corporation, must notify the NRC when they obtain certain types of information; e.g., information concerning defects in components which could cause a substantial safety nazard. When such persons provide information to the NRC they are subject to the Deliberate Misconduct Rule as it appears in the relevant Part
-of Chapter I of 10 CFR. For example, if the director of a corporation obtains information 13
SUPPLEMENTARY INFORMATIOik The Commission's " General Statement of Policy and Drocedure for NRC Enforcement Actions" (Enforcement Policy or Policy) was first issued on September 4,1980. Since that time, the Enforcement Policy hns been revised on a number of occasions. On June 30,1995 (60 FR 34381), the Enforcement Policy was revised in its entirety and was also published as NUREG-1600. The Policy primarily addresses violations by licensees and certain non-
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licensed persons, as discussed further in footnote 3 to Section I, introduction and Purpose, and in Section X Enforcement Action Against Non-licensees.
The Deliberate Mirconduct Rule was adopter' in September 1991 and applies to any licensee or any employee of a licensee; and any contractor (including a supplier or
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consultant), subcontractor, or any employee of a contractor or subcontractor or any licensee.
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The Deliberate Misconduct Rule placed licensed and unlicensed persons on notice that they
- may be subject to enforcement action for deliberate misconduct that causes or would have caused, if not detected, a licensee to be in violation of any of the Commission's requirements, or for deEberately providing to the NRC, a licensee, or contractor, information that is incomplete or inaccurate in some respect material to the NRC.
The final rulemaking expands the Deliberate Misconduct Rule, where it appears in 10
. CFR Parts 30,40,50,60,61,70,72, and 110, clarifies the scope of Part 32 and adds the Rule to Parts 52 and 71. This expansion arises out of a realization that the current Rule does not apply to applicants for NRC licenses, applicants for, or holders of, certificates of compliance, early site permits, standard design certifications, or combined licenses issued 2
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UfMTED STATES o
NUCLEAR REGULATORY COMMISSION g
t W ASHINGTON, DA 20585-0001 S...., +~
December 12, 1997 IN RESPONSE, PLEASE REFER TO:
M971211A stenciamy
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OK Y
MEMORANDUM TO: L. Joseph Callan Executive Director for Operations F
e D.,Cyr, General Counsel (A
FROM:
hn C.
oyle
SUBJECT:
STAFF REQUIREMENTS: AFFIRMATION SESSION, 2:00 P.M.
THURSDAY, DECEMBER 11, 1997, COMMISSIONERS CONFERENCE ROOM, ONE WHITE FLINT NORTH, ROCKVILLE, MARYLAND (OPEN TO PUBLIC ATTENDANCE)
I.
SECY-97-252 - FINAL RULE - DELIBERATE MISCONDUCT BY UNLICENSED PSRSONS The Commission approved a final rule amending 10 CFR Parts 30, 32, 40, 50, 52, 60, 61, 70, 71, 72, 110, and 150, which would extend the scope of the Deliberate Misconduct Rule to cover certificate holders and applicants for licenses or certificates of compliance as well as employees, contractors, subcontractors, and consultants for certificate holders and applicants, and conforming changes to the NRC Enforcement Policy.
The staff should incorporate the attached changes to the Federal Register Notices for the final rule and to the separate Federal Register Notice conforming the NRC's " General Statememt of policy and Procedures for NRC Enforcement Actions" to reflect the change in scope of the Deliberate Misconduct Rule, and forward the revised Federal Register Notices to the Office of the Secretary for signature and publication.
(EDO)
(SECY suspense:
12/29/97)
II.
SECY 97-266 - ORDER DENYING A MOTION TO OUASH SIX SUBPOENAS ISSUED BY THE OFFICE OF INVESTIGATIONS The Commission approved an order denying a motion to quash six subpoenas issued by the Office of Investigations to employes of a hospital holding an NRC medical license pursuant to 10 CFR Part 30.
(Subsequently, the Secretary signed the order on December 11, 1997)
Attachment:
As stated fpq il i o d T l ___
cci Chairman Jackson Comissiorer Dieus Comissioner Diaz Commissioner McGaffigan EDO OGC CIO CFO OCAA OCA OIG Of fice Directiors, Regions, ACRS, ACNW, ASLBP (by E-Mail)
l Editorial Changes to the Federal Reaister Notice on the final rule in SECY-97-252 1.
On page 7, paragraph 2, line 1, insert 'such' after ' issue.'
2.
On page 10, replace the last word (implies) with ' infers.'
3.
On page 13, in the response, line 1, replace ' types' with
' categories.
Editorial Change to the Federal Recister Hotice on the Enforcement Actions in SECY-97-252 1.
On page 2, paragraph 2, line 3, replace the last 'or' with
- of.*
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