[Federal Register Volume 63, Number 8 (Tuesday, January 13, 1998)]
[Rules and Regulations]
[Pages 1890-1901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-755]
[[Page 1890]]
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NUCLEAR REGULATORY COMMISSION
10 CFR Parts 30, 32, 40, 50, 52, 60, 61, 70, 71, 72, 110, and 150
RIN 3150-AF35
Deliberate Misconduct by Unlicensed Persons
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
regulations to extend the Deliberate Misconduct Rule to six categories
of persons: applicants for NRC licenses; applicants for, or holders of,
certificates of compliance; applicants for, or holders of, early site
permits, standard design certifications, or combined licenses for
nuclear power plants; applicants for, or holders of, certificates of
registration; applicants for, or holders of, quality assurance program
approvals; and the employees, contractors, subcontractors and
consultants of the above five categories of persons. This amendment
would subject these categories of persons to enforcement action for
deliberate misconduct. Deliberate misconduct may involve providing
information that is known to be incomplete or inaccurate in some
respect material to the NRC, or it may involve conduct that causes or
would have caused, if not detected, a licensee, certificate holder, or
applicant to be in violation of any of the Commission's requirements.
EFFECTIVE DATE: This final rule is effective on February 12, 1998.
FOR FURTHER INFORMATION CONTACT: Tony DiPalo, Office of Nuclear
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, telephone (301) 415-6191, e-mail,
[email protected].
SUPPLEMENTARY INFORMATION:
Background
On August 15, 1991 (56 FR 40664), the Commission adopted changes to
NRC regulations that established the Deliberate Misconduct Rule found
at 10 CFR 30.10, 40.10, 50.5, 60.11, 61.9b, 70.10, 72.12, and 110.7b,
which applies to any licensee or any employee of a licensee; and any
contractor (including a supplier or consultant), subcontractor, or any
employee of a contractor or subcontractor, of any licensee. In
addition, 10 CFR 150.2, Scope, provides notice to persons conducting
activities under reciprocity in areas of NRC jurisdiction that they are
subject to the rule (see 10 CFR 150.20, Recognition of Agreement State
licenses). 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 deliberately providing to the NRC, a licensee, or
contractor, information that is incomplete or inaccurate in some
respect material to the NRC.
Currently, the Deliberate Misconduct Rule does not apply to:
(1) Applicants for NRC licenses;
(2) Applicants for, or holders of, certificates of compliance
issued under 10 CFR Parts 71 and 72, including those for dry cask
storage;
(3) Applicants for, or holders of, early site permits, standard
design certifications, or combined licenses for nuclear power plants
issued under 10 CFR Part 52;
(4) Applicants for, or holders of, certificates of registration
issued under Parts 30 and 32;
(5) Applicants for, or holders of, quality assurance program
approvals issued under Part 71; and
(6) The employees, contractors, subcontractors and consultants of
the first five categories of persons.
To ensure that these persons are subject to enforcement action for
wrongdoing under the Deliberate Misconduct Rule, on October 4, 1996 the
NRC issued a proposed rule to extend the rule to them (61 FR 51835).
This final rule will also add the Deliberate Misconduct Rule to 10 CFR
parts 52 and 71 where it currently does not appear.
The staff does not believe that it is necessary to add the
Deliberate Misconduct Rule to 10 CFR part 54 because licensees applying
to renew their operating licenses for nuclear power plants are already
subject to this rule as licensees under 10 CFR part 50. Similarly, the
staff does not believe that it is necessary to add the Deliberate
Misconduct Rule to 10 CFR part 55 because applicants for, and holders
of, reactor operators' licenses are already subject to this rule as
employees of 10 CFR part 50 licensees. Moreover, licensed operators are
subject to all applicable Commission requirements (see 10 CFR 55.53
(d)) and thus a finding of deliberate misconduct is not required to
take enforcement action against a licensed reactor operator.
Discussion
It is 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 (AEA), underscores this need by
providing that ``[a] license may be revoked for any material false
statement in the application or any statement of fact required [by
statute or regulation] * * * '' The Commission has promulgated rules
concerning completeness and accuracy of information that specifically
apply to information provided to the Commission by a licensee or 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), 71.az, 72.11(a), 76.9(a) and 110.7a(a)).
Similarly, subsection (b) of each of these sections, which deals with
notification to the Commission of significant safety information,
refers to applicants as well as licensees. Violation of these
provisions can result in denial of the license application, civil
enforcement action against a licensee, or, if appropriate, referral to
the Department of Justice for consideration for criminal prosecution.
The Deliberate Misconduct Rule permits the NRC to take individual
action, such as issuing an order, against an individual who
deliberately provides information that the individual knows to be
incomplete or inaccurate. However, when the Deliberate Misconduct Rule
was promulgated, it did not address applicants for licenses; applicants
for, and holders of, certificates of compliance or certificates of
registration; applicants for, and holders of, early site permits,
certified designs and combined licenses; and applicants for, and
holders of, quality assurance program approvals, and their employees,
and contractors and consultants, and their employees.
Incomplete or inaccurate information has potential safety
significance, whether submitted before or after a license, certificate,
permit, or approval has been issued. The Commission has clearly
emphasized the importance of applications containing accurate
information; e.g., ``[The Commission] cannot overstate the importance
of a licensee's or an applicant's duty to provide the Commission with
accurate information.'' Randall C. Orem. D.O., CLI-93-14, 37 NRC 423
(1993). The Orem case involved a consultant to an applicant for a
license who provided inaccurate information that was included in the
license application and the Commission found that information as to the
status of the facility was material to the licensing decision. Id. at
428.
The Commission believes that there may be significant safety
consequences from the deliberate submission of false
[[Page 1891]]
or incomplete information or other deliberate wrongdoing by an
applicant for a license or other unlicensed persons covered by this
modification to the Deliberate Misconduct Rule. For example, a quality
assurance program that is submitted to the NRC for approval but is
supported by deliberately falsified data that mask a significant defect
could be a public health and safety threat. Under the present
Deliberate Misconduct Rule, a certificate holder who obtained a
certificate by deliberate submittal of false information could escape
individual NRC enforcement action because the deliberate misconduct may
not have put an ``NRC licensee'' in violation. To effectively exercise
its authority under the AEA, the Commission needs to prevent or
otherwise deter the deliberate submittal of materially false or
inaccurate information by those entities not currently covered by the
rule.
The Commission is amending the Deliberate Misconduct Rule each
place it appears in 10 CFR Chapter I to make the rule apply to
applicants for NRC licenses; to applicants for, and holders of,
certificates of compliance issued under 10 CFR parts 71 and 72; to
applicants for, and holders of, early site permits, certified designs,
and combined licenses for nuclear power plants issued under 10 CFR part
52; to applicants for, and holders of, certificates of registration
issued under parts 30 and 32; and to applicants for, and holders of,
quality assurance program approvals issued under part 71; and to the
employees, contractors, subcontractors and consultants of all the above
categories of persons. This would include, for example, a consultant
engaged by an applicant to prepare a license application for such
activities as radiography, well logging, irradiation, and teletherapy.
It would also apply to a consultant preparing an application for a
certificate for a spent fuel cask, or individuals conducting
performance tests to support such an application. The amendments to the
Deliberate Misconduct Rule will appear in 10 CFR 30.10, 40.10, 50.5,
60.11, 61.9b, 70.10, 72.12, and 110.7b. Section 71.11 is being added to
incorporate the rule in 10 CFR part 71 and 10 CFR 52.10 is being added
to incorporate the rule in 10 CFR part 52. In addition, 10 CFR 150.2
and 10 CFR 32.1(b) are being revised to incorporate the proposed
changes. Also, the scope provisions found in 10 CFR 30.1, 40.2, 50.1,
52.1, 60.1, 61.1(c), 70.2, 71.0, 72.2, and 110.1(a) are being modified
to reflect these revisions to the rule. The Commission is also making a
minor language change to improve readability by altering the phrase
``but for detection'' to ``if not detected'' where the phrase appears
in each rule, but intends no substantive change by this revision.
Having this enforcement authority available will help the NRC pursue
redress in cases of deliberate misconduct by unlicensed persons acting
within the scope of the Commission's jurisdiction and may deter such
behavior as well.
This rulemaking extending the Deliberate Misconduct Rule to
applicants for NRC licenses; applicants for, and holders of,
certificates of compliance issued under 10 CFR parts 71 and 72;
applicants for, and holders of, early site permits, standard design
certifications, or combined licenses for nuclear power plants issued
under 10 CFR part 52; applicants for, and holders of, certificates of
registration issued under parts 30 and 32; and applicants for, and
holders of, quality assurance program approvals issued under part 71;
and to the employees, contractors, subcontractors and consultants of
all the above categories of persons, implements the Commission's
authority under the AEA to issue regulations and orders to any person
(defined in Section 11s of 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.
In brief, Section 161i of the AEA provides broad authority to issue
such regulations and orders as the Commission deems necessary to govern
any activity authorized pursuant to the AEA in order to protect public
health and safety. Section 161b of the AEA similarly authorizes the
Commission to issue regulations and orders to impose ``standards and
instructions'' on persons to govern 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
violating the NRC's substantive requirements. Section 234a of the AEA
reads as follows:
Any person who (1) violates any licensing or certification
provision of Sections 53, 57, 62, 63, 81, 82, 101, 103, 104, 107,
109, 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, * * *.
The licensing provisions listed in Section 234a generally prohibit the
possession, use, receipt, or transfer of nuclear materials or
facilities unless authorized by and in accordance with a license.
The amendments are made under the authority of sections 161b and i
and the above-identified licensing provisions in Section 234. The
changes apply to any person in the categories enumerated above who
engages in deliberate misconduct, or who deliberately submits
materially incomplete or inaccurate information, as provided in the
rule. By imposing a direct prohibition on unlicensed persons, the
Commission may be able to exercise its Section 234 authority to impose
civil penalties on unlicensed persons when they deliberately cause
violations of requirements issued under the licensing provisions
enumerated in Section 234. In cases when the Commission issues an order
(other than an order imposing a civil penalty) to a person based on
deliberate misconduct, the order would be issued in part pursuant to a
regulation (e.g., 10 CFR 30.10) that was promulgated under a licensing
provision of the AEA. A civil penalty could be available for violations
of such an order. In addition, criminal sanctions under Section 223 of
the AEA are available for willful violations of orders and regulations
issued under sections 161b and i. Injunctions are also available under
Section 232 of the AEA for violations of Commission orders.
Summary of Public Comments
On December 18, 1996, the comment period for the proposed
amendments to the Deliberate Misconduct Rule closed. The NRC received 6
comments on the proposed rule which are addressed below. One comment,
in addition to favoring speedy adoption of the proposed rule, requested
information on the status of NRC enforcement cases against certain dry
cask storage vendors which the NRC views to be outside the scope of
this proposed rulemaking. Copies of the public comments are available
in the NRC Public Document Room, 2120 L Street, NW. (Lower Level),
Washington, DC. A summary of the comments is provided below.
Comment: One utility commenter was concerned that the proposed
revisions to the rule did not address preliminary or ``for information
only'' information that may be sent to the NRC staff. This commenter
believed that situations could arise where licensees provide
information to the NRC staff to support teleconferences or meetings and
where
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the information is considered to be preliminary and subject to change
over time. In these cases, the commenter believed preliminary
information should not be construed as intended to be complete and the
conclusion reached that deliberate misconduct occurred. A second issue
raised by this commenter pertained to how potentially erroneous
information in a Safety Evaluation Report could result in a conclusion
reached by the NRC staff that since this erroneous information is
inconsistent with that provided in the licensee's submittal, the
licensee committed willful misconduct.
Response: The NRC's completeness and accuracy rules require that
all information provided to the Commission shall be complete and
accurate in all material respects (10 CFR 30.9, 40.9, 50.9, etc.). The
deliberate submission of information which is incomplete or inaccurate
in material respects, where the submitter of the information knows of
the incompleteness or inaccuracy, may be considered deliberate
misconduct. However, the submission of information acknowledged to be
incomplete would not be considered deliberate misconduct if it is made
in good faith and based on the best information available, but is
corrected later based on additional information or analysis. The NRC's
General Statement of Policy and Procedures for Enforcement Actions
(NUREG-1600) (Enforcement Policy) points out that a citation is not
made if an initial submittal was accurate 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
misconduct to conclude that conscientious people may be subject to
personal liability 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 individuals are significant actions that need to be closely
controlled and judiciously applied.'' (See 56 FR 40664, 40681)
Comment: 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 NEI, authority
over non-licensee persons was not provided by Congress other than in
limited circumstances carved out in the AEA as exceptions. In
particular, NEI believes that Section 161i(3) of the AEA does not
provide jurisdiction over non-licensee persons because it does not
contain the operative phrase ``any person'' and therefore, NEI infers,
is confined to licensees. NEI recognizes that deliberately-provided
misinformation or other deliberate misconduct could have a very serious
effect on public health and safety and thus needs to be deterred.
However, in the view of NEI, 18 U.S.C. Sec. 1001, the general criminal
statute applicable to the Federal government and its agencies, provides
an adequate deterrent to the wrongdoers NRC seeks to capture in this
rulemaking.
Response: The Commission considered, but rejected, the objection
that it did not have jurisdiction over non-licensees at the time it
issued the original Deliberate Misconduct Rule. See 56 FR 40664,
(1991). As the Commission stated:
In enacting Section 161 of the 1954 Act, Congress conferred
uniquely broad and flexible authority on the Commission.
Specifically, Congress authorized the Commission in Section 161 to
`prescribe such * * * regulations * * * as it may deem necessary to
govern any activity authorized pursuant to [the 1954 Act], in order
to protect health and minimize danger to life and property.'
With respect to the absence of specific provisions setting forth the
limits of the NRC's personal jurisdiction, the Commission stated at 56
FR 40666-40667:
Where Congress does not include statutory provisions governing
in personam jurisdiction, it is appropriate to look to the scope of
subject matter jurisdiction in order to determine the scope of in
personam jurisdiction. Since Congress did not include any specific
personal jurisdiction provisions in the 1954 Act, or any limitations
on such jurisdiction, the NRC is authorized to assert its personal
jurisdiction over persons based on the maximum limits of its subject
matter jurisdiction. The agency's personal jurisdiction is
established when a person acts within the agency's subject matter
jurisdiction. * * * The persons who are being brought within the
scope of the Deliberate Misconduct Rule in these amendments are all
persons who, in some way, engage in activities within NRC's subject
matter jurisdiction. Thus, the Commission discerns no statutory
prohibition on making these persons subject to the restrictions of
the Deliberate Misconduct Rule.
NEI also contends that the Deliberate Misconduct Rule and these
amendments are not needed because an adequate deterrent and remedy is
provided by 18 U.S.C. Sec. 1001. This statute allows the imposition of
criminal penalties for persons who, inter alia, knowingly and willfully
make false statements to an agency of the Federal Government. There are
several reasons why this enforcement option is not an adequate
substitute for the Deliberate Misconduct Rule. First, 18 U.S.C.
Sec. 1001 punishes deliberate false statements but does not cover the
types of deliberate misconduct captured by Section a(1) of the rule.
Second, the civil enforcement penalties available to the NRC for
violations of its rule, precisely because they are less drastic than
criminal penalties, are more flexible and, thus, are more likely to be
used in appropriate cases, affording the NRC greater ability to deter
and remedy deliberate misconduct.
Comment: NEI also commented that one of the rule's standards for
enforcement action--knowingly providing incomplete or inaccurate
information which is ``in some respect material to the NRC''--is overly
broad. This standard appears to permit the NRC to take enforcement
action whether or not a violation of NRC regulations has occurred or
would have occurred but for detection. This breadth of scope results in
the standard not being sufficiently clear to inform the public of the
elements of the prohibited action.
Response: The Commission disagrees with the commenter's assertion
that the rule is overly broad. The rule specifies that the persons who
are delineated as being subject to the rule must knowingly provide
components, materials or other goods and services that relate to, e.g.,
a licensee's or certificate holder's activities subject to NRC
regulation. Such persons, therefore, know that they are acting in an
area that relates to activities within NRC's regulatory jurisdiction.
As the Commission said with respect to a similar 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 and safety concern within
the NRC's regulatory sphere.'' 56 FR 40670. The fact that no actual
violation has
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occurred, or would have occurred but for detection, has no bearing on
whether, from a health and 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 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 JAI 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.
Response: Under 10 CFR part 21, certain categories of 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 hazard. 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 indicating a failure to comply or
a defect affecting a basic component that is supplied for a nuclear
power plant subject to 10 CFR part 50, the director is subject to the
Deliberate Misconduct Rule as it appears in part 50 (10 CFR 50.5) when
reporting this failure to comply or defect to the NRC. Further, the
Deliberate Misconduct Rule makes no distinction between deliberately
submitting information known to be incomplete or inaccurate to the NRC
and submitting the same information to a licensee, or to a licensee's
contractor or subcontractor. Thus, the regulations do not countenance
the disparity of treatment envisioned by the commenter.
Comment: One commenter, a source production and equipment company,
supported the proposed rule but also recommended that the rule be
revised to specifically apply to the persons who maintain the equipment
malfunction records that are required by the Quality Control and
Quality Assurance (QA/QC) programs which are required under 10 CFR part
32 for the manufacture and distribution of radiography equipment. The
commenter recognizes that because these records are not part of the
Quality Assurance program itself, they are not submitted to the NRC as
part of a registration certificate application. Nevertheless, the
commenter believes that the accuracy and integrity of these records are
essential for the QA/QC program to be effective and thus the Deliberate
Misconduct Rule should apply to persons who maintain equipment
malfunction records for certificate holders.
Response: The Deliberate Misconduct Rule is being made applicable
to certificate holders and applicants, and to their employees,
contractors and subcontractors, not only when they deliberately submit
information to the NRC, but also when they deliberately submit to a
certificate of registration holder or applicant, or a certificate
holder'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. Thus, for example, an
employee or contractor of a certificate of registration holder
responsible for maintaining equipment malfunction records who knowingly
submits incomplete or inaccurate information to the certificate of
registration holder violates the Deliberate Misconduct Rule if the
information submitted is in some respect material to the NRC. However,
in the absence of a requirement for maintenance of equipment
malfunction records, a person generating an inaccurate or incomplete
equipment malfunction record is not subject to the Deliberate
Misconduct Rule unless and until these records are actually submitted
to one of the persons covered by section a(2) of the rule.
Comment: One commenter, while agreeing with the proposed rule, did
not see why amendment of the Deliberate Misconduct Rule is necessary
with respect to part 72 certificate holders and their contractors and
subcontractors because, in the view of the commenter, the rule
presently encompasses the contractors and subcontractors of licensees
and certificate holders are contractors to licensees, and thus are
covered by the rule as it now exists.
Response: Insofar as certificate holders are contractors to
licensees (and certificate holders' contractors and subcontractors are
subcontractors to licensees), the commenter is correct. Those
certificate holders, and their contractors and subcontractors, are
covered by the present rule. However, the NRC does not require the
existence of a contract as a prerequisite to the issuance of a
Certificate of Compliance (see 72.236; 72.238). Thus, it is possible
for a certificate holder not to be a contractor to a licensee. The
amended rule will cover those certificate holders.
Criminal Penalties
For purposes of Section 223 of the Atomic Energy Act (AEA), the
Commission is issuing the final rule under one or more of sections
161b, 161i or 161o of the AEA. Willful violations of the rule will be
subject to criminal enforcement.
Environmental Impact: Categorical Exclusion
The NRC has determined that this final rule relates to enforcement
matters and, therefore, falls within the scope of 10 CFR 51.10(d).
Therefore, neither an environmental impact statement nor an
environmental assessment has been prepared for this final rule.
Paperwork Reduction Act Statement
This final rule does not contain a new or amended information
collection requirement subject to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501, et seq.). Existing requirements were approved by the
Office of Management and Budget, approval numbers 3150-0017, 3150-0151,
3150-0127, 3150-0135, 3150-0009, 3150-0132, 3150-0036, and 3150-0032.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
Compatibility of Agreement State Regulations
The Commission did not make the original Deliberate Misconduct Rule
and the supporting enforcement guidance a matter of Agreement State
compatibility. However, in the intervening period, the Commission has
re-examined its compatibility policy and issued two new policy
statements which establish principles for determining the degree of
compatibility expected between NRC and Agreement State regulations:
``Statement of Principles and Policy for the Agreement State Program,''
and ``Policy Statement on Adequacy and Compatibility of Agreement State
Programs,'' (62 FR 46517). The NRC staff, in conjunction with the Joint
NRC-Agreement State Adequacy and Compatibility Working Group, re-
evaluated the compatibility categorization of 10 CFR 30.10, 40.10 and
70.10 and recommended that these
[[Page 1894]]
deliberate misconduct requirements be required for compatibility under
Category C of the new Policy Statement. Under Category C, Agreement
States would have to adopt the essential objectives of these
requirements to avoid conflicts, duplications or gaps between the NRC
and Agreement State Programs. The Commission has approved staff's plan
to provide an opportunity for the Agreement States and the public to
comment on this and other recommendations. After receipt and resolution
of comments, the staff will submit final recommendations to the
Commission for approval.
Regulatory Analysis
The Nuclear Regulatory Commission has statutory authority to issue
enforcement actions against unlicensed persons whose deliberate
misconduct causes a licensee or a certificate holder or an applicant
for a license or certificate to be in violation of the Commission's
requirements. On August 15, 1991 (56 FR 40664), the NRC promulgated the
Deliberate Misconduct Rule which put licensed and unlicensed persons on
notice that they may be subject to enforcement action for deliberate
misconduct that causes or, if not detected, would cause a licensee to
be in violation of any of the Commission's requirements or for
deliberately providing to the NRC, a licensee or a contractor
information that is incomplete or inaccurate in some respect material
to the NRC. However, the Deliberate Misconduct Rule does not
specifically apply to: (1) Applicants for NRC licenses, (2) applicants
for, and holders of, certificates of compliance issued under parts 71
and 72, (3) applicants for, and holders of, early site permits,
standard design certifications, or combined licenses for nuclear power
plants issued under part 52, (4) applicants for, and holders of,
certificates of registration issued under parts 30 and 32, (5)
applicants for, and holders of, quality assurance program approvals
issued under part 71, and (6) the employees, contractors,
subcontractors and consultants of the first five categories of persons.
On November 29, 1991, the NRC staff issued an Order Revoking
License to Dr. Randall C. Orem after the NRC staff learned that
information in his license application was false and that the
application had been prepared by a consultant who had provided the
false information. See Randall C. Orem, D.O., CLI-93-14, 37 NRC 423
(1993). In this case, the NRC staff realized that under the provisions
of the existing Deliberate Misconduct Rule, it was unable to take
additional enforcement action against Dr. Orem and was precluded from
taking enforcement action against the consultant because the consultant
was working for an applicant rather than for a licensee. Subsequently,
the Commission realized that other categories of persons within the
Commission's jurisdiction had not been explicitly included within the
Deliberate Misconduct Rule; e.g., certificate holders under 10 CFR
parts 71 and 72 and holders of early site permits, certified design
certifications and combined licenses under 10 CFR part 52.
The Commission believes that there may be significant safety
consequences from the deliberate submission of false or incomplete
information or other deliberate wrongdoing by an applicant for a
license or other unlicensed persons proposed to be covered by this
modification to the Deliberate Misconduct Rule. For example, a spent
fuel storage cask that is certified by the NRC on the basis of
falsified test data could represent a threat to public health and
safety. Similarly, a quality assurance program that is submitted to the
NRC for approval, but is supported by deliberately falsified data that
mask a significant defect, could also be a public health and safety
threat. Because the potential for injury is serious, the NRC knows no
reason why the Deliberate Misconduct Rule should not apply to persons
who deliberately submit materially incomplete or inaccurate
information, whether that submittal is by or on behalf of an applicant,
or by or on behalf of a holder of a license, certificate, permit or
approval.
The objective of the rule is to explicitly put those persons
encompassed by this modification of the Deliberate Misconduct Rule on
notice that enforcement action may be taken against them for deliberate
misconduct or deliberate submission of incomplete or inaccurate
information, in relation to NRC licensed activities. Under Section 234
of the Atomic Energy Act, the Commission may impose civil penalties on
any person who violates any rule, regulation, or order issued under any
one of the enumerated provisions of the Act, or who commits a violation
for which a license may be revoked. The enforcement actions that may be
taken, including orders limiting activities of wrongdoers in the future
and civil penalties, will serve as a deterrent to others throughout the
industry.
The alternatives available to the Commission are to promulgate a
modification of the Deliberate Misconduct Rule, as is proposed herein,
or do nothing. Given the fact that a case has already occurred where
the Commission was precluded from taking appropriate enforcement action
against a consultant to an applicant, and the potential harm to the
public, the alternative of doing nothing was rejected. The benefits of
taking enforcement action are similar to those of taking action against
licensed entities in that a civil penalty and attendant adverse
publicity encourage future compliance, the Notice of Violation calls
for a precise response as to corrective action taken, and an
enforcement order, if obeyed, will directly control the involvement of
an individual in a licensed activity. The effect of having these
options available in the enforcement program should reduce the
probability of repetitive violations by wrongdoers.
The NRC does not anticipate that additional investigations will be
necessary to implement the rule because it focuses on the results of
investigations. Based on experience, the NRC expects fewer than 10
additional cases per year to result in enforcement action being taken
against unlicensed individuals. The cost of preparing and publishing
the additional actions beyond the current workload is not significant.
The rule constitutes the preferred course of action and the cost
involved in its promulgation and application is necessary and
appropriate. The foregoing discussion constitutes the regulatory
analysis for this rule.
Regulatory Flexibility Certification
In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission certifies that this final rule, if adopted, will
not have a significant economic impact on a substantial number of small
entities. The final rule would put: (1) Applicants for NRC licenses;
(2) applicants for, and holders of, certificates of compliance issued
under 10 CFR parts 71 and 72, including those for dry cask storage; (3)
applicants for, and holders of, early site permits, standard design
certifications, or combined licenses issued under 10 CFR part 52; (4)
applicants for, and holders of, certificates of registration issued
under 10 CFR parts 30 and 32; (5) applicants for, and holders of,
quality assurance program approvals issued under 10 CFR part 71; and
(6) the employees, contractors, subcontractors and consultants of the
first five categories of persons on notice that they are subject to the
Deliberate Misconduct Rule and, therefore, are subject to civil
enforcement action if they deliberately cause a licensee, certificate
holder, or an applicant for a license or certificate to
[[Page 1895]]
be in violation of NRC requirements. The final rule does not impose any
additional obligations on entities that may fall within the definition
of ``small entities'' as set forth in Section 601(6) of the Regulatory
Flexibility Act; or within the definition of ``small business'' as
found in Section 3 of the Small Business Act, 15 U.S.C. 632; or within
the size standards adopted by the NRC on April 11, 1995 (60 FR 18344).
Small Business Regulatory Enforcement Fairness Act
In accordance with the Small Business Regulatory Enforcement
Fairness Act of 1996, the NRC has determined that this action is not
``a major'' rule and has verified this determination with the Office of
Information and Regulatory Affairs, Office of Management and Budget.
Backfit Analysis
The NRC has determined that the backfit rule, 10 CFR 50.109, does
not apply to this final rule and, therefore, a backfit analysis is not
required for this final rule because these amendments do not involve
any provisions that would impose backfits as defined in 10 CFR
50.109(a)(1).
Enforcement Policy
Concurrently with publication of the Deliberate Misconduct Final
Rule, the Commission is publishing modifications to NUREG-1600,
``General Statement of Policy and Procedure for NRC Enforcement
Actions,'' to address enforcement action against the categories of
unlicensed persons listed under this Final Rule.
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 32
Byproduct material, Criminal penalties, Nuclear materials,
Labeling, Radiation protection, Reporting and recordkeeping
requirements.
10 CFR Part 40
Criminal penalties, Government contracts, Hazardous materials
transportation, Nuclear materials, Reporting and recordkeeping
requirements, Source material, Uranium.
10 CFR Part 50
Antitrust, Classified information, Criminal penalties, Fire
protection, Intergovernmental relations, Nuclear power plants and
reactors, Radiation protection, Reactor siting criteria, Reporting and
recordkeeping requirements.
10 CFR Part 52
Administrative practice and procedure, Antitrust, Backfitting,
Combined license, Early site permit, Emergency planning, Fees,
Inspection, Limited work authorization, Nuclear power plants and
reactors, Probabilistic risk assessment, Prototype, Reactor siting
criteria, Redress of site, Reporting and recordkeeping requirements,
Standard design, Standard design certification.
10 CFR Part 60
Criminal penalties, High-level waste, Nuclear power plants and
reactors, Nuclear materials, 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 71
Criminal penalties, Hazardous materials transportation, Nuclear
materials, Packaging and containers, Reporting and recordkeeping
requirements.
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, Hazardous materials transportation,
Intergovernmental relations, Nuclear materials, Reporting and
recordkeeping requirements, Security measures, Source material, Special
nuclear material.
For the reasons stated in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended; the Energy Reorganization
Act of 1974, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting
the following amendments to 10 CFR parts 30, 32, 40, 50, 52, 60, 61,
70, 71, 72, 110, and 150.
PART 30--RULES OF GENERAL APPLICABILITY TO DOMESTIC LICENSING OF
BYPRODUCT MATERIAL
1. The authority citation for part 30 continues to read as follows:
Authority: Secs. 81, 82, 161, 182, 183, 186, 68 Stat. 935, 948,
953, 954, 955, as amended, 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, 5842, 5846).
Section 30.7 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 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 30.1 is revised to read as follows:
Sec. 30.1 Scope.
This part prescribes rules applicable to all persons in the United
States governing domestic licensing of byproduct material under the
Atomic Energy Act of 1954, as amended (68 Stat. 919), and under title
II of the Energy Reorganization Act of 1974 (88 Stat. 1242), and
exemptions from the domestic licensing requirements permitted by
Section 81 of the Act. This part also gives notice to all persons who
knowingly provide to any licensee, applicant, certificate of
registration holder, contractor, or subcontractor, components,
equipment, materials, or other goods or services, that relate to a
licensee's, applicant's or certificate of registration holder's
activities subject to this part, that they may be individually subject
to NRC enforcement action for violation of Sec. 30.10.
3. Section 30.10 is revised to read as follows:
[[Page 1896]]
Sec. 30.10 Deliberate misconduct.
(a) Any licensee, certificate of registration holder, applicant for
a license or certificate of registration, employee of a licensee,
certificate of registration holder or applicant; or any contractor
(including a supplier or consultant), subcontractor, employee of a
contractor or subcontractor of any licensee or certificate of
registration holder or applicant for a license or certificate of
registration, who knowingly provides to any licensee, applicant,
certificate holder, contractor, or subcontractor, any components,
equipment, materials, or other goods or services that relate to a
licensee's, certificate holder's or applicant's activities in this
part, may not:
(1) Engage in deliberate misconduct that causes or would have
caused, if not detected, a licensee, certificate of registration
holder, 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, certificate of
registration holder, an applicant, or a licensee's, certificate
holder'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 the 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, certificate of registration holder 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,
certificate of registration holder, applicant, contractor, or
subcontractor.
PART 32--SPECIFIC DOMESTIC LICENSES TO MANUFACTURE OR TRANSFER
CERTAIN ITEMS CONTAINING BYPRODUCT MATERIAL
4. The authority citation for part 32 continues to read as follows:
Authority: Secs. 81, 161, 182, 183, 68 Stat. 935, 948, 953, 954,
as amended (42 U.S.C. 2111, 2201, 2232, 2233); sec. 201, 88 Stat.
1242, as amended (42 U.S.C. 5841).
5. Section 32.1(b) is revised to read as follows:
Sec. 32.1 Purpose and scope.
* * * * *
(b) The provisions and requirements of this part are in addition
to, and not in substitution for, other requirements of this chapter. In
particular, the provisions of part 30 of this chapter apply to
applications, licenses and certificates of registration subject to this
part.
PART 40--DOMESTIC LICENSING OF SOURCE MATERIAL
6. The authority citation for part 40 continues to read as follows:
Authority: Secs. 62, 63, 64, 65, 81, 161, 182, 183, 186, 68
Stat. 932, 933, 935, 948, 953, 954, 955, as amended, secs. 11e(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, as
amended, 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).
Section 40.7 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 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).
7. Section 40.2 is revised to read as follows:
Sec. 40.2 Scope.
Except as provided in Secs. 40.11 to 40.14, inclusive, the
regulations in this part apply to all persons in the United States.
This part also gives notice to all persons who knowingly provide to any
licensee, 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, that they
may be individually subject to NRC enforcement action for violation of
Sec. 40.10.
8. Section 40.10 is revised to read as follows:
Sec. 40.10 Deliberate misconduct.
(a) Any licensee, applicant for a license, employee of a licensee
or applicant; or any contractor (including a supplier or consultant),
subcontractor, employee of a contractor or subcontractor of any
licensee or applicant for a license, who knowingly provides to any
licensee, applicant, contractor, or subcontractor, any components,
equipment, materials, or other goods or services that relate to a
licensee's or applicant's activities in this part, may not:
(1) Engage in deliberate misconduct that causes or would have
caused, if not detected, 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, an 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 the 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 50--DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION
FACILITIES
9. 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. 444, 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 Stat. 939, as amended (42 U.S.C. 2138).
Sections 50.23, 50.35,
[[Page 1897]]
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 issued 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 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).
10. Section 50.1 is revised to read as follows:
Sec. 50.1 Basis, purpose, and procedures applicable.
The regulations in this part are promulgated by the Nuclear
Regulatory Commission pursuant to the Atomic Energy Act of 1954, as
amended (68 Stat. 919), and Title II of the Energy Reorganization Act
of 1974 (88 Stat. 1242), to provide for the licensing of production and
utilization facilities. This part also gives notice to all persons who
knowingly provide to any licensee, 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, that they may be individually subject to NRC enforcement
action for violation of Sec. 50.5.
11. Section 50.5 is revised to read as follows:
Sec. 50.5 Deliberate misconduct.
(a) Any licensee, applicant for a license, employee of a licensee
or applicant; or any contractor (including a supplier or consultant),
subcontractor, employee of a contractor or subcontractor of any
licensee or applicant for a license, who knowingly provides to any
licensee, applicant, contractor, or subcontractor, any components,
equipment, materials, or other goods or services that relate to a
licensee's or applicant's activities in this part, may not:
(1) Engage in deliberate misconduct that causes or would have
caused, if not detected, 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, an 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 the 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 52--EARLY SITE PERMITS; STANDARD DESIGN CERTIFICATIONS; AND
COMBINED LICENSES FOR NUCLEAR POWER PLANTS
12. The authority citation for part 52 is revised to read as
follows:
Authority: Secs. 103, 104, 161, 182, 183, 186, 189, 68 Stat.
936, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 444, as
amended (42 U.S.C. 2133, 2201, 2232, 2233, 2236, 2239, 2282); secs.
201, 202, 206, 88 Stat. 1242, 1244, 1246, as amended (42 U.S.C.
5841, 5842, 5846).
13. Section 52.1 is revised to read as follows:
Sec. 52.1 Scope.
This part governs the issuance of early site permits, standard
design certifications, and combined licenses for nuclear power
facilities licensed under Section 103 or 104b of the Atomic Energy Act
of 1954, as amended (68 Stat. 919), and Title II of the Energy
Reorganization Act of 1974 (88 Stat. 1242). This part also gives notice
to all persons who knowingly provide to any holder of or applicant for
an early site permit, standard design certification, or combined
license, or to a contractor, subcontractor, or consultant of any of
them, components, equipment, materials, or other goods or services,
that relate to the activities of a holder of or applicant for an early
site permit, standard design certification, or combined license,
subject to this part, that they may be individually subject to NRC
enforcement action for violation of Sec. 52.9.
14. Section 52.9 is added to read as follows:
Sec. 52.9 Deliberate misconduct.
(a) Any holder of, or applicant for, an early site permit, standard
design certification, or combined license, including its employees,
contractors, subcontractors, or consultants and their employees, who
knowingly provides to any holder of, or applicant for, an early site
permit, standard design certification, or combined license, or to a
contractor, subcontractor or consultant of any of them, equipment,
materials, or other goods or services that relate to the activities of
a holder of, or applicant for, an early site permit, standard design
certification or combined license in this part, may not:
(1) Engage in deliberate misconduct that causes or would have
caused, if not detected, a holder of, or applicant for, an early site
permit, standard design certification, or combined license, to be in
violation of any rule, regulation, or order; or any term, condition, or
limitation of any permit, certification or license issued by the
Commission; or
(2) Deliberately submit to the NRC, a holder of, or applicant for,
an early site permit, standard design certification, or combined
license, or a contractor, subcontractor, or consultant of any of them,
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 the 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 holder of, or applicant for, an early site
permit, standard design certification, or combined license, 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 holder of, or
applicant for, an early site permit, certified design or combined
license, or a contractor or subcontractor of any of them.
PART 60--DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN GEOLOGIC
REPOSITORIES
15. 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,
[[Page 1898]]
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. 2213g, 2228, as amended (42 U.S.C. 10134, 10141) and
Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851).
16. Section 60.1 is revised to read as follows:
Sec. 60.1 Purpose and scope.
This part prescribes rules governing the licensing of the U.S.
Department of Energy to receive and possess source, special nuclear,
and byproduct material at a geologic repository operations area sited,
constructed, or operated in accordance with the Nuclear Waste Policy
Act of 1982. This part does not apply to any activity licensed under
another part of this chapter. This part also gives notice to all
persons who knowingly provide to any licensee, 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, that they may be individually subject to NRC enforcement
action for violation of Sec. 60.11.
17. Section 60.11 is revised to read as follows:
Sec. 60.11 Deliberate misconduct.
(a) Any licensee, applicant for a license, employee of a licensee
or applicant; or any contractor (including a supplier or consultant),
subcontractor, employee of a contractor or subcontractor of any
licensee or applicant for a license who knowingly provides to any
licensee, applicant, contractor, or subcontractor, any components,
equipment, materials, or other goods or services that relate to a
licensee's or applicant's activities in this part, may not:
(1) Engage in deliberate misconduct that causes or would have
caused, if not detected, 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, an 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 the 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 61--LICENSING REQUIREMENTS FOR LAND DISPOSAL OF RADIOACTIVE
WASTE
18. The authority citation for part 61 continues to read as
follows:
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 Pub. L. 102-486, sec.
2902, 106 Stat. 3123, (42 U.S.C. 5851).
19. Section 61.1(c) is revised to read as follows:
Sec. 61.1 Purpose and scope.
* * * * *
(c) This part also gives notice to all persons who knowingly
provide to any licensee, 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,
that they may be individually subject to NRC enforcement action for
violation of Sec. 61.9b.
20. Section 61.9b is revised to read as follows:
Sec. 61.9b Deliberate misconduct.
(a) Any licensee, applicant for a license, employee of a licensee
or applicant; or any contractor (including a supplier or consultant),
subcontractor, employee of a contractor or subcontractor of any
licensee or applicant for a license, who knowingly provides to any
licensee, applicant, contractor, or subcontractor, any components,
equipment, materials, or other goods or services that relate to a
licensee's or applicant's activities in this part, may not:
(1) Engage in deliberate misconduct that causes or would have
caused, if not detected, 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, an 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 the 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 70--DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL
21. 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 70.1(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. 2951 (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). Sections 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).
22. Section 70.2 is revised to read as follows:
Sec. 70.2 Scope.
Except as provided in Secs. 70.11 to 70.13, inclusive, the
regulations in this part apply to all persons in the United States.
This part also gives notice to all persons who knowingly provide to any
licensee, applicant, contractor, or subcontractor, components,
equipment,
[[Page 1899]]
materials, or other goods or services, that relate to a licensee's or
applicant's activities subject to this part, that they may be
individually subject to NRC enforcement action for violation of
Sec. 70.10.
23. Section 70.10 is revised to read as follows:
Sec. 70.10 Deliberate misconduct.
(a) Any licensee, applicant for a license, employee of a licensee
or applicant; or any contractor (including a supplier or consultant),
subcontractor, employee of a contractor or subcontractor of any
licensee or applicant for a license, who knowingly provides to any
licensee, applicant, contractor, or subcontractor, any components,
equipment, materials, or other goods or services that relate to a
licensee's or applicant's activities in this part, may not:
(1) Engage in deliberate misconduct that causes or would have
caused, if not detected, 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, an 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 the 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 71--PACKAGING AND TRANSPORTATION OF RADIOACTIVE MATERIAL
24. The authority citation for part 71 continues to read as
follows:
Authority: Secs. 53, 57, 62, 63, 81, 161, 182, 183, 68 Stat.
930, 932, 933, 935, 948, 953, 954, as amended, sec. 1701, 106 Stat.
2951, 2952, 2953 (42 U.S.C. 2073, 2077, 2092, 2093, 2111, 2201,
2232, 2233, 2297f); secs. 201, as amended, 202, 206, 88 Stat. 1242,
as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846).
Section 71.97 also issued under sec. 301, Pub. L. 96-295, 94 Stat.
789-790.
25. In Sec. 71.0, paragraph (f) is added to read as follows:
Sec. 71.0 Purpose and scope.
* * * * *
(f) This part also gives notice to all persons who knowingly
provide to any licensee, certificate holder, quality assurance program
approval holder, applicant for a license, certificate, or quality
assurance program approval or to a contractor, or subcontractor of any
of them, components, equipment, materials, or other goods or services,
that relate to a licensee's, certificate holder's, quality assurance
program approval holder's or applicant's activities subject to this
part, that they may be individually subject to NRC enforcement action
for violation of Sec. 71.11.
26. Section 71.11 is added to read as follows:
* * * * *
Sec. 71.11 Deliberate misconduct.
(a) This section applies to any--
(1) Licensee;
(2) Certificate holder;
(3) Quality assurance program approval holder;
(4) Applicant for a license, certificate, or quality assurance
program approval;
(5) Contractor (including a supplier or consultant) or
subcontractor, to any person identified in paragraphs (a)(1) through
(a)(4) of this section; or
(6) Employee of any person identified in paragraphs (a)(1) through
(a)(5) of this section.
(b) A person identified in paragraph (a) of this section who
knowingly provides to any entity, listed in paragraphs (a)(1) through
(a)(5) of this section any components, materials, or other goods or
services that relate to a licensee's, certificate holder's, quality
assurance program approval holder's or applicant's activities subject
to this part may not:
(1) Engage in deliberate misconduct that causes or would have
caused, if not detected, a licensee, certificate holder, quality
assurance program approval holder, or any applicant to be in violation
of any rule, regulation, or order; or any term, condition, or
limitation of any license, certificate or approval issued by the
Commission; or
(2) Deliberately submit to the NRC, a licensee, a certificate
holder, quality assurance program approval holder, an applicant for a
license, certificate or quality assurance program approval, or a
licensee's, applicant's, certificate holder's or quality assurance
program approval holder's contractor or subcontractor, information that
the person submitting the information knows to be incomplete or
inaccurate in some respect material to the NRC.
(c) A person who violates paragraph (b)(1) or (b)(2) of this
section may be subject to enforcement action in accordance with the
procedures in 10 CFR part 2, subpart B.
(d) For the purposes of paragraph (b)(1) of this section,
deliberate misconduct by a person means an intentional act or omission
that the person knows:
(1) Would cause a licensee, certificate holder, quality assurance
program approval holder or applicant for a license, certificate, or
quality assurance program approval to be in violation of any rule,
regulation, or order; or any term, condition, or limitation, of any
license or certificate issued by the Commission; or
(2) Constitutes a violation of a requirement, procedure,
instruction, contract, purchase order, or policy of a licensee,
certificate holder, quality assurance program approval holder,
applicant, or the contractor or subcontractor of any of them.
PART 72--LICENSING REQUIREMENTS FOR THE INDEPENDENT STORAGE OF
SPENT NUCLEAR FUEL AND HIGH-LEVEL RADIOACTIVE WASTE
27. 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, 1246 (42 U.S.C. 5841, 5842, 5846);
Pub. L. 95-601, sec. 10, 92 Stat. 295 as amended by Pub.L. 102-486,
sec. 7902, 106 Stat. 3123 (42 U.S.C. 5851); sec. 102, Pub. L. 91-
190, 83 Stat. (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. 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. 935
(42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C.
10154). Section 72.96(d) also issued under sec. 145(g), Pub. L. 100-
203, 101 Stat. 1330-235 (42 U.S.C. 10165(g)).
[[Page 1900]]
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 K and L are also issued under sec. 133,
96 Stat. 2230 (42 U.S.C. 10153) and sec. 218(a), 96 Stat. 2252 (42
U.S.C. 10198).
28. In Sec. 72.2, paragraph (f) is revised to read as follows:
Sec. 72.2 Scope.
* * * * *
(f) This part also gives notice to all persons who knowingly
provide to any licensee, certificate holder, applicant for a license or
certificate, contractor, or subcontractor, components, equipment,
materials, or other goods or services, that relate to a licensee's,
certificate holder's, or applicant's activities subject to this part,
that they may be individually subject to NRC enforcement action for
violation of Sec. 72.12.
29. Section 72.12 is revised to read as follows:
Sec. 72.12 Deliberate misconduct.
(a) Any licensee, certificate holder, applicant for a license or
certificate, employee of a licensee, certificate holder, or applicant
for a license or certificate; or any contractor (including a supplier
or consultant) or subcontractor, employee of a contractor or
subcontractor of any licensee, certificate holder, or applicant for a
license or certificate who knowingly provides to any licensee,
certificate holder, applicant for a license or certificate, contractor,
or subcontractor, any components, materials, or other goods or services
that relate to a licensee's, certificate holder's, or applicant's
activities subject to this part, may not:
(1) Engage in deliberate misconduct that causes or would have
caused, if not detected, a licensee, certificate holder or applicant to
be in violation of any rule, regulation, or order; or any term,
condition, or limitation of any license or certificate issued by the
Commission; or
(2) Deliberately submit to the NRC, a licensee, a certificate
holder, an applicant for a license or certificate, or a licensee's,
applicant's, or certificate holder'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 the 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, certificate holder or applicant for a
license or certificate to be in violation of any rule, regulation, or
order; or any term, condition, or limitation, of any license or
certificate issued by the Commission; or
(2) Constitutes a violation of a requirement, procedure,
instruction, contract, purchase order, or policy of a licensee,
certificate holder, applicant, contractor, or subcontractor.
PART 110--EXPORT AND IMPORT OF NUCLEAR EQUIPMENT AND MATERIAL
30. 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, 111, 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).
Sections 110.1(b)(2) and 110.1(b)(3) also issued under Pub. L. 96-
92, 93 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.).
31. In Sec. 110.1, paragraph (a) is revised to read as follows:
Sec. 110.1 Purpose and scope.
(a) The regulations in this part prescribe licensing, enforcement,
and rulemaking procedures and criteria, under the Atomic Energy Act,
for the export of nuclear equipment and material, as set out in
Secs. 110.8 and 110.9, and the import of nuclear equipment and
material, as set out in Sec. 110.9a. This part also gives notice to all
persons who knowingly provide to any licensee, 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, that they may be individually subject to NRC enforcement
action for violation of Sec. 110.7b.
32. Section 110.7b is revised to read as follows:
Sec. 110.7b Deliberate misconduct.
(a) Any licensee, applicant for a license, employee of a licensee
or applicant; or any contractor (including a supplier or consultant),
subcontractor, employee of a contractor or subcontractor of any
licensee or applicant for a license, who knowingly provides to any
licensee, applicant, contractor, or subcontractor, any components,
equipment, materials, or other goods or services that relate to a
licensee's or applicant's activities in this part, may not:
(1) Engage in deliberate misconduct that causes or would have
caused, if not detected, 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, an 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 the 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 150--EXEMPTIONS AND CONTINUED REGULATORY AUTHORITY IN
AGREEMENT STATES AND IN OFFSHORE WATERS UNDER SECTION 274
33. The authority citation for part 150 continues to read as
follows:
[[Page 1901]]
Authority: Sec. 161, 68 Stat. 948, as amended, 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 (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).
34. Section 150.2 is revised to read as follows:
Sec. 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 knowingly provide to any licensee, applicant for a
license or certificate or quality assurance program approval, holder of
a certificate or quality assurance program approval, contractor, or
subcontractor, any components, equipment, materials, or other goods or
services that relate to a licensee's, certificate holder's, quality
assurance program approval holder's or applicant's activities subject
to this part, that they may be individually subject to NRC enforcement
action for violation of Secs. 30.10, 40.10, 70.10 and 71.11.
Dated at Rockville, Maryland, this 6th day of January, 1998.
For the Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 98-755 Filed 1-12-98; 8:45 am]
BILLING CODE 7590-01-P