[Federal Register Volume 66, Number 104 (Wednesday, May 30, 2001)]
[Proposed Rules]
[Pages 29243-29244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-13493]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 66, No. 104 / Wednesday, May 30, 2001 / 
Proposed Rules  

[[Page 29243]]



NUCLEAR REGULATORY COMMISSION

10 CFR Parts 30, 34, 35, 36, 39, 40, 50, 70, 72, and 76

[Docket No. PRM-30-63]


Natural Resources Defense Council; Denial of Petition for 
Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Denial of petition for rulemaking.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition 
for rulemaking submitted by the Natural Resources Defense Council (PRM-
30-63). The petitioner requested that the Commission's regulations be 
amended to require that no license be issued to, or retained by, any 
individual or organization whose principal owner, officer, or senior 
manager: (1) Fails to report engaging in, or having knowledge or 
evidence of, bribery of, or extortion by, Federal, State, or other 
regulatory officials; or, (2) has acted in any manner that flagrantly 
undermines the integrity of the regulatory process of NRC or that of an 
Agreement State. NRC is denying the petition because the petitioner has 
neither identified a statutory requirement for promulgating the 
regulation nor identified a need for such regulation since NRC already 
has the authority to take the actions requested by the petitioner, and 
because the NRC believes that imposition of these types of actions 
should be considered on a case-by-case basis.

ADDRESSES: Copies of the petition for rulemaking, the public comments 
received, and the NRC's letter to the petitioner are available for 
public inspection or copying in the NRC Public Document Room, 11555 
Rockville Pike, Rockville, Maryland. These same documents are also 
available on the NRC's rulemaking website at http://ruleforum.llnl.gov. 
For information about the interactive rulemaking website, contact Carol 
Gallagher, (301) 415-5905 (e-mail: [email protected].

FOR FURTHER INFORMATION CONTACT: John W. Lubinski, Office of 
Enforcement, U.S. Nuclear Regulatory Commission, Washington DC 20555-
0001, Telephone: (301) 415-2740.

SUPPLEMENTARY INFORMATION:

The Petition

    On June 30, 2000 (65 FR 40548), NRC published a notice of receipt 
of a petition for rulemaking filed by the Natural Resources Defense 
Council. The petitioner requested that no license be issued to, or 
retained by, any individual or organization whose principal owner, 
officer, or senior manager: (1) Fails to report engaging in, or having 
knowledge or evidence of, bribery of, or extortion by, Federal, State, 
or other regulatory officials; or, (2) has acted in any manner that 
flagrantly undermines the integrity of the regulatory process of NRC or 
that of an Agreement State.

Public Comments on the Petition

    The notice of receipt of petition for rulemaking invited interested 
persons to submit comments. NRC received two comment letters: one from 
a law firm and one from an organization of the nuclear energy and 
technologies industry. The comments focused on the main elements of the 
petition. Both commenters recommended that NRC deny the petition. The 
following comments were provided and were reviewed and considered in 
NRC's decision:
    1. Both commenters stated that NRC already has the authority to 
consider character and integrity of applicants and licensees when 
making licensing decisions. The commenters included citations from the 
Atomic Energy Act (AEA) and past statements by the Commission to 
support their position. NRC agrees that it currently has such authority 
and has used such authority in making licensing decisions or taking 
enforcement actions based on the character and integrity of an 
applicant or licensee.
    2. One commenter stated that the petition does not identify a 
regulatory ``gap'' that needs to be filled. The commenter goes on to 
state that in such cases NRC has routinely denied rulemaking petitions. 
NRC agrees that the petitioner did not identify a regulatory ``gap,'' 
and does not believe that such a ``gap'' exists. As already discussed, 
NRC has the authority to take the actions identified by the petitioner.
    3. Both commenters stated that NRC has the essential ability and 
flexibility to consider all relevant circumstances, both positive and 
negative, in making enforcement decisions. The commenters believe that 
NRC should continue to make enforcement decisions on a case-by-case 
basis using appropriate discretion and judgment. One of the commenters 
goes on to state that singling out certain specific acts (which are 
neither exhaustive nor comprehensive of actions relevant for 
determining character) that trigger denial or revocation of a license 
without regard to the particular circumstances would be inconsistent 
with past Commission policy. NRC agrees with the commenters that making 
such a change would narrow the Commission's discretion by eliminating 
its ability to make character determinations on the basis of all 
relevant circumstances.
    4. Both commenters stated that certain language in the petition, 
specifically, ``flagrantly undermining the integrity of the regulatory 
process of NRC or that of an Agreement State,'' is too vague. The 
commenters believe this wording would raise serious questions regarding 
adequate notice and due process and would not withstand judicial 
scrutiny. NRC does not agree with the commenters on this issue. 
Specifically, the Commission derives its authority to evaluate 
character and integrity from the AEA. Promulgation of specific rule 
language would further clarify the criteria used in performing such 
evaluations. Therefore, while NRC believes that specific rule language 
on this issue is not warranted, NRC does not agree with the commenters 
that the proposal by the petitioner should be denied based on the fact 
that the language is too vague.
    5. Both commenters stated that the proposed regulation does not 
take into account NRC actions against licensees versus individuals. 
Specifically, the proposed regulation would require denial or 
revocation of a license based on the acts of one individual. Instead, 
the commenters believe that NRC should continue to consider on a case-
by-case basis whether the acts of an individual should be imputed to 
the licensee. NRC agrees that the petitioner has not provided 
sufficient justification

[[Page 29244]]

to change the NRC's current practice of considering on a case-by-case 
basis whether the acts of an individual should be imputed to the 
licensee.
    6. One commenter stated that any attempt to apply such a regulation 
based on past conduct of a licensee, such as acts prior to promulgation 
of the regulation, would violate the prohibition against retroactive 
rulemaking. NRC does not agree that approval of the petition would 
represent retroactive rulemaking. Specifically, as already discussed, 
NRC already has authority to consider character and integrity of 
applicants and licensees when making licensing decisions. As such, 
evaluations of character and integrity are not limited to acts that 
occur after promulgation of a rule or requirement that provides greater 
detail with respect to the matter of character and integrity. However, 
as part of using discretion and judgement in determining appropriate 
actions, NRC may consider the age of the actions in question.

Reasons for Denial

    NRC is denying the petition for the following reasons:
    1. The petitioner has not identified a statutory requirement for 
promulgating the regulation requested in the petition. In addition, the 
petitioner did not identify a need for such regulation nor a gap in the 
current regulatory process. Specifically, NRC already has authority 
under the AEA to deny or revoke a license, or ban an individual from 
licensed activities, if adequate protection of public health and safety 
is not provided. NRC currently considers the integrity and character of 
individuals in determining adequate protection. Section 182a of the AEA 
states, in part, that license applications shall specifically state the 
information that NRC determines is necessary to evaluate the character 
of the applicant. The information must enable NRC to find that the 
licensed activities will provide adequate protection of health and 
safety. Further, after filing the original application and before 
expiration of a license, NRC may require additional information in 
order to determine whether the license should be modified or revoked. 
In considering the integrity and character of an applicant or licensee, 
NRC would consider engaging in bribery or extortion or acts that 
undermine the integrity of the regulatory process. Therefore, if NRC 
determines that it does not have reasonable assurance of adequate 
protection of health and safety based upon, in part, the character of 
an applicant or licensee, NRC may deny or revoke a license. 
Promulgation of specific rule language is, therefore, not necessary.
    2. NRC does not agree with the petitioner that the regulations 
should specify the actions that NRC would take against an applicant or 
licensee that has engaged in bribery of, or extortion by, any Federal, 
State or other regulator or has acted in any manner that flagrantly 
undermines the integrity of the regulatory process of NRC or that of an 
Agreement State. Specifically, NRC believes that all enforcement 
actions, including those involving situations identified by the 
petitioner, should be reviewed on a case-by-case basis and 
dispositioned according to the merits of the specific case using 
appropriate discretion and judgment. In addition, the current 
Enforcement Policy, NUREG-1600, states that in deciding whether to 
issue an enforcement action to an unlicensed person as well as to the 
licensee based on the willful acts of an individual, NRC recognizes 
that judgments will have to be made on a case-by-case basis. The policy 
includes factors that will be considered in making such decisions. NRC 
does not believe that the petitioner has provided sufficient 
information nor justification for NRC to consider changing its practice 
of deciding enforcement actions based on case-by-case consideration of 
these factors.
    For these reasons, NRC does not believe that the rulemaking 
requested by the Petitioner should be promulgated and; therefore, NRC 
denies the petition.

    Dated at Rockville, Maryland, this 14th day of May, 2001.

    For the Nuclear Regulatory Commission.
William D. Travers,
Executive Director for Operations.
[FR Doc. 01-13493 Filed 5-29-01; 8:45 am]
BILLING CODE 7590-01-P