[Federal Register Volume 66, Number 189 (Friday, September 28, 2001)]
[Notices]
[Pages 49708-49710]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24338]



[[Page 49708]]

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NUCLEAR REGULATORY COMMISSION

[Docket No. 71-0122, Approval No. 0122 EA-01-164]


In the Matter of J.L. Shepherd & Associates, San Fernando, 
California; Confirmatory Order Relaxing Order; Effective Immediately

I

    J.L. Shepherd & Associates (JLS&A or Approval Holder) was the 
holder of Quality Assurance (QA) Program Approval for Radioactive 
Material Packages No. 0122 (Approval No. 0122), issued by the U. S. 
Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR 
part 71, subpart H. The approval was previously issued pursuant to the 
QA requirements of 10 CFR 71.101. QA activities authorized by Approval 
No. 0122 include: design, procurement, fabrication, assembly, testing, 
modification, maintenance, repair, and use of transportation packages 
subject to the provisions of 10 CFR part 71. Approval No. 0122 was 
originally issued January 17, 1980. Revision No. 5 was issued January 
24, 1996, with an expiration date on January 31, 2001, and is under 
timely renewal. In addition to having a QA program approved by the NRC 
to satisfy the provisions of 10 CFR part 71, subpart H, to transport or 
deliver for transport licensed material in a package, JLS&A is required 
by 10 CFR part 71, subpart C, to have and comply with the package's 
Certificate of Compliance (CoC) issued by the NRC. Based on JLS&A 
failure to comply with 10 CFR part 71, QA Program Approval No. 0122 was 
withdrawn, by the immediately effective NRC Order dated July 3, 2001.

II

    NRC staff conducted an inspection on May 29-31, 2001, at JLS&A's 
facility. The inspection identified significant concerns with the 
implementation of the JLS&A QA program regarding the design, use, 
repair, and maintenance of transportation packages approved for use by 
NRC under CoC No. 6280. Specifically, NRC found that JLS&A failed to 
implement portions of the QA Program Approval No. 0122 which resulted 
in JLS&A delivering for export radioactive material in a transportation 
package that did not comply with the requirements of 10 CFR part 71. As 
a result of the findings during the May 29-31, 2001, inspection the NRC 
lacked confidence that JLS&A would implement the QA Program approved by 
NRC in accordance with 10 CFR part 71, subpart H, in a manner that 
would assure the required preparation and use of transportation 
packages in full conformance with the terms and conditions of an NRC 
CoC and with 10 CFR part 71. Consequently, as noted above, in the 
interest of protecting public health and safety, JLS&A QA Approval No. 
0122 was withdrawn by an immediately effective Order issued July 3, 
2001, (July 2001 Order).

III

    By letter dated August 17, 2001, JLS&A responded to the U.S. 
Nuclear Regulatory Commission's July 2001 Order. In a response, dated 
August 16, 2001, JLS&A requested that provisions of the Order be 
relaxed based on a showing of good cause. Specifically, JLS&A requested 
interim relief from the July 2001 Order based on JLS&A's proposed Near-
Term Corrective Action Plan (NTCAP), to allow 66 shipments to 15 
customers, in Department of Transportation specification packaging 
designated as 20WC. The NRC staff reviewed JLS&A's relief request and 
identified, in a September 7, 2001, letter, information necessary for 
the NRC staff to determine whether to grant the requested relief 
consistent with assurances that public health and safety are 
maintained.
    By letter dated September 13, 2001, JLS&A requested to make two 
additional shipments to an additional customer also using the 20WC 
packaging. With respect to the substantive concerns identified by the 
staff in the July 2001 Order, JLS&A agreed to take the following 
corrective actions listed below, before it makes any of the proposed 68 
shipments to 16 customers in accordance with the proposed NTCAP.
    1. a. JLS&A will correct the deficiencies or clarify language, as 
applicable, in the QA/QC implementing documents, including procedures, 
for the 1995 JLS&A Quality Assurance Program Plan (QAPP), identified in 
the Quality Assurance Audit (QA Audit) issued by Donald R. Neely 
Associates on December 4, 2000, with respect to those items that 
require full or limited application of the NTCAP as stated in Section 
1.2 and Appendix A of the August response;
    b. JLS&A will make available to NRC inspectors a document 
indicating how each deficiency in the QA Audit was corrected;
    2. a. JLS&A will use the implementing procedures for the 1995 QAPP, 
as revised and corrected in accordance with Item 1, to complete an 
inspection of all 20WC packages involved in the proposed NTCAP. The 
inspection will confirm that the packages and associated procedures are 
in conformance with 49 CFR 178.362, ``Specification 20WC wooden 
protective jacket.'' Each inspection will include, at a minimum, actual 
physical measurements, and visual inspections for damage, corrosion, or 
other potentially unacceptable conditions;
    b. JLS&A will document the results of each inspection in separate 
reports approved by the QA Administrator and prepared in accordance 
with the revised QAPP and implementing procedures. The report will 
include the list of attributes verified, the acceptance criteria, and 
the results for each attribute;
    3. JLS&A will train all JLS&A's staff, contractors, and sub-
contractors, involved in the NTCAP, in the revised QAPP and 
implementing procedures for NTCAP activities. Training of the QA 
Administrator will be performed by a QA auditor with the following 
minimum qualifications; an understanding of the NTCAP, a university 
degree in a physical science or engineering program or equivalent 
experience, experience in the review of engineering drawings, 
scientific technology, nuclear technology, transportation regulations, 
and at least 5 years experience with International and American 
national quality assurance standards and quality assurance programs. 
Training of the JLS&A staff, contractors, and sub-contractors shall be 
performed by either the QA Auditor or the QA Administrator once 
trained. The QA Auditor who will perform duties under this paragraph 
will be Mr. Donald R. Neely;
    4. JLS&A will provide certifications under oath and affirmation 
from both J. L. Shepherd and the independent auditor that the three 
conditions listed above have been completed;
    5. JLS&A commits to implement the actions in the August response;
    6. a. JLS&A commits to have an independent auditor, who has full 
authority, to review and inspect all aspects of JLS&A operations, 
shipments, and documentation, that the independent auditor believes are 
necessary, perform monthly performance based and in-depth audits of all 
ongoing NTCAP items. The independent auditor shall be approved by NRC 
or have been previously approved by NRC to perform audits at JLS&A. The 
QA Auditor who will perform duties under this paragraph will be Mr. 
Donald R. Neely;
    b. The audits described in paragraph 6.a. will, at a minimum, be 
performed using the inspection evaluation guidelines in Chapter 4 of 
NUREG/CR-6314, ``Quality Assurance Inspections

[[Page 49709]]

for Shipping and Storage Containers,'' and will include a combination 
of procedures and records review and observations of actual packaging 
activities, as appropriate for the audits performed;
    c. The independent QA auditor will document the objective, scope, 
findings and proposed corrective actions of the audits and will provide 
copies simultaneously to both JLS&A and NRC. The audit report shall be 
provided 20 calendar days after the end of each month; and
    7. JLS&A commits to hold all shipments until NRC has completed an 
inspection. At the conclusion of the inspection, NRC will notify JLS&A 
if shipments can commence.
    In addition, on September 13, 2001, JLS&A consented to issuance of 
this Confirmatory Order granting interim relief from the July 2001 
Order subject to the commitments, as described in Section IV below, 
agreed that this Confirmatory Order is to be effective upon issuance, 
and agreed to waive its right to a hearing on this action. 
Implementation of these commitments will provide assurance that 
sufficient resources will be applied to the QA program, and that the 
program will be conducted safely and in accordance with NRC 
requirements.
    I find that JLS&A's commitments as set forth in Section IV are 
acceptable and necessary and conclude that with these commitments the 
public health and safety are reasonably assured. In view of the 
foregoing, I have determined that the public health and safety require 
that JLS&A's commitments be confirmed by this Confirmatory Order. Based 
on the above and JLS&A's consent, this Confirmatory Order is effective 
immediately upon issuance.

IV

    Accordingly, pursuant to sections 62, 81, 161b, 161i, 182 and 186 
of the Atomic Energy Act of 1954, as amended, and the Commission's 
regulations in 10 CFR 2.202 and 10 CFR parts 71 and 110, It Is Hereby 
Ordered, Effective Immediately, That The July 3, 2001 Order Is Relaxed 
To Grant Interim Relief To Allow 68 Shipments to 16 Customers 20 WC 
Packages in Accordance with JLS&A'S NTCAP, Through March 2002, 
Provided:
    1. a. JLS&A will correct the deficiencies or clarify language, as 
applicable, in the QA/QC implementing documents, including procedures, 
for the 1995 QAPP, identified in the Quality Assurance Audit (QA Audit) 
issued by Donald R. Neely Associates on December 4, 2000, with respect 
to those items that require full or limited application of the NTCAP as 
stated in Section 1.2 and Appendix A of the August response;
    b. JLS&A will make available to NRC inspectors a document 
indicating how each deficiency in the QA Audit was corrected;
    2. a. JLS&A will use the implementing procedures for the 1995 QAPP, 
as revised and corrected in accordance with Item 1, to complete an 
inspection of all 20WC packages involved in the proposed NTCAP. The 
inspection will confirm that the packages and associated procedures are 
in conformance with 49 CFR 178.362, ``Specification 20WC wooden 
protective jacket.'' Each inspection will include, at a minimum, actual 
physical measurements, and visual inspections for damage, corrosion, or 
other potentially unacceptable conditions;
    b. JLS&A will document the results of each inspection in separate 
reports approved by the QA Administrator and prepared in accordance 
with the revised QAPP and implementing procedures. The report will 
include the list of attributes verified, the acceptance criteria, and 
the results for each attribute;
    3. JLS&A will train all JLS&A's staff, contractors, and sub-
contractors, that will be involved in the NTCAP, in the revised QAPP 
and implementing procedures for NTCAP activities. Training of the QA 
Administrator will be performed by a QA auditor with the following 
minimum qualifications; an understanding of the NTCAP, a university 
degree in a physical science or engineering program or equivalent 
experience, experience in the review of engineering drawings, 
scientific technology, nuclear technology, transportation regulations, 
and at least 5 years experience with International and American 
national quality assurance standards and quality assurance programs. 
Training of the JLS&A staff, contractors, and sub-contractors shall be 
performed by either the QA Auditor or the QA Administrator once 
trained. The QA Auditor who will perform duties under this paragraph 
will be Mr. Donald R. Neely;
    4. JLS&A will provide certifications under oath and affirmation 
from both J. L. Shepherd and the independent auditor that the three 
conditions listed above have been completed;
    5. JLS&A commits to implement the actions in the August response;
    6. a. JLS&A commits to have an independent auditor, who has full 
authority to review and inspect all aspects of JLS&A operations, 
shipments, and documentation that the independent auditor believes are 
necessary, perform monthly performance-based and in-depth audits of all 
ongoing NTCAP items. The independent auditor shall be approved by NRC 
or have been previously approved by NRC to perform audits at JLS&A. The 
QA auditor who will perform duties under this paragraph will be Mr. 
Donald R. Neely;
    b. The audits described in paragraph 6.a. will, at a minimum, be 
performed using the inspection evaluation guidelines in Chapter 4 of 
NUREG/CR-6314, ``Quality Assurance Inspections for Shipping and Storage 
Containers,'' and will include a combination of procedures and records 
review and observations of actual packaging activities, as appropriate 
for the audits performed;
    c. The independent QA auditor will document the objective, scope, 
findings and proposed corrective actions of the audits and will provide 
copies simultaneously to both JLS&A and NRC. The audit report shall be 
provided 20 calendar days after the end of each month; and,
    7. JLS&A commits to hold all shipments until NRC has completed an 
inspection. At the conclusion of the inspection, NRC will notify JLS&A 
if shipments can commence for the proposed 68 shipments to 16 customers 
in accordance with the NTCAP.
    The Director, Office of Enforcement or Office of Nuclear Material 
Safety and Safeguards, may in writing, relax or rescind this 
Confirmatory Order upon demonstration of good cause by the Approval 
Holder.

V

    In accordance with 10 CFR 2.202, any person, other than JLS&A, 
adversely affected by this Confirmatory Order may request a hearing 
within 20 days of its issuance. Where good cause is shown, 
consideration will be given to extending the time to request a hearing. 
A request for extension of time must be made in writing to the 
Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555, and include a statement of good cause for the 
extension. Any request for a hearing shall be submitted to the 
Secretary, U.S. Nuclear Regulatory Commission, Attn: Rulemakings and 
Adjudications Staff, Washington, DC 20555. Copies of the hearing 
request also should be sent to the Director, Office of Enforcement, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555, to the 
Director, Office of Nuclear Material Safety and Safeguards at the same 
address, to the Assistant General Counsel for Materials Litigation and 
Enforcement at the same address, to

[[Page 49710]]

the Regional Administrator, NRC Region IV, 611 Ryan Plaza Drive, Suite 
400, Arlington, TX 76011, and to the Approval Holder. If such person 
requests a hearing, that person shall set forth with particularity the 
manner in which his or her interest is adversely affected by this 
Confirmatory Order and shall address the criteria set forth in 10 CFR 
2.714(d).
    If a hearing is requested by a person whose interest is adversely 
affected, the Commission will issue an Order designating the time and 
place of any hearing. If a hearing is held, the issue to be considered 
at such hearing shall be whether this Confirmatory Order should be 
sustained.
    In the absence of any request for hearing, or written approval of 
an extension of time in which to request a hearing, the provisions 
specified in Section IV above shall be final 20 days from the date of 
this Confirmatory Order without further Order or proceedings. If an 
extension of time for requesting a hearing has been approved, the 
provisions specified in Section IV shall be final when the extension 
expires if a hearing request has not been received. A Request for 
Hearing Shall Not Stay The Immediate Effectiveness of This Confirmatory 
Order.

    Dated this 19th day of September 2001.

    For the Nuclear Regulatory Commission.
Frank J. Congel,
Director, Office of Enforcement.
[FR Doc. 01-24338 Filed 9-27-01; 8:45 am]
BILLING CODE 7590-01-P