[Federal Register Volume 74, Number 234 (Tuesday, December 8, 2009)]
[Pages 64757-64759]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29200]



[NRC-2009-0526; IA-08-036]

In the Matter of Cedric Fernando, M.D.; Confirmatory Order 
(Effective Immediately)


    Cedric Fernando, M.D., is a licensed physician who provides 
physician services to Nuclear Fuel Services, Inc. (NFS or Licensee) and 
is the Medical Review Officer (MRO) for NFS. The Licensee is the holder 
of Special Nuclear Materials License No. SNM-124 issued by the Nuclear 
Regulatory Commission (NRC or Commission) pursuant to 10 CFR Part 70 on 
July 2, 1999. The license authorizes the operation of the NFS facility 
in accordance with the conditions specified therein. The facility is 
located on the Licensee's site in Erwin, Tennessee.
    This Confirmatory Order is the result of an agreement reached 
during an Alternative Dispute Resolution (ADR) mediation session 
conducted on May 14, 2009.


    An incident occurred at the Licensee's facility in March 2006, in 
which an NFS senior executive violated the NFS Fitness-For-Duty (FFD) 
policy and regulatory requirements. As the Medical Review Officer for 
NFS at the time, Dr. Cedric Fernando reviewed the circumstances of the 
FFD incident and was involved in a subsequent determination as to 
whether the former NFS senior executive was fit to return to duty.
    On April 20, 2006, the NRC's Office of Investigations (OI) 
initiated a review of the March 2006 FFD incident. Based on the 
evidence developed during the investigation, the NRC staff identified 
three apparent violations of 10 CFR 70.10, as summarized below:
    (1) On April 5, 2006, Dr. Fernando provided materially incomplete 
information to a contract professional retained by NFS to perform a 
determination of fitness for duty of the NFS senior executive.
    (2) Dr. Fernando's failure to provide the contract professional 
this material information caused NFS to fail to make an informed 
determination that the NFS senior executive was fit to safely and 
competently perform his duties and responsibilities before being 
returned to duty.
    (3) On or about April 5, 2006, Dr. Fernando provided materially 
inaccurate information to NFS that the NFS senior executive had entered 
a substance abuse rehabilitation program, when in fact he had not done 
    Dr. Fernando disagrees that any of the identified apparent 
violations occurred.


    On May 14, 2009, the NRC and Dr. Fernando met in an ADR session 
mediated by a professional mediator, which was arranged through Cornell 
University's Institute on Conflict Resolution. ADR is a process in 
which a neutral mediator with no decision-making authority assists the 
parties in reaching an agreement or resolving any differences regarding 
their dispute. This confirmatory order is issued pursuant to the 
agreement reached during the ADR process. The elements of the agreement 
consist of the following:
    (1) Dr. Fernando disagrees with the facts on which the Agency based 
its preliminary conclusion that he violated 10 CFR 70.10 and denies any 
misconduct. At the ADR meeting, Dr. Fernando elaborated on the 
circumstances concerning his involvement in the referral of the NFS 
senior executive. Dr. Fernando emphasized that his actions at the time 
were consistent with the roles and responsibilities of an MRO providing 
services to an NRC licensee, his current work processes and practices, 
and were consistent with general medical practice. Dr. Fernando stated 
that his actions did not violate any NRC requirements, circumvent a 
thorough assessment of the NFS senior executive's fitness to return to 
duty because the contract professional had the information that he 
allegedly failed to provide, or mislead NFS regarding the treatment 
that the NFS senior executive received.
    (2) At the ADR session, Dr. Fernando expressed and re-emphasized 
his commitment and willingness to comply with all NRC regulations. To 
this end, Dr. Fernando agrees and is committed to the actions set forth 
in Section V below.
    (3) In consideration of the above, NRC agrees not to pursue action 
with respect to Dr. Fernando for those matters referred to in Section 
II above, with the exception of NRC's confirmation of completion of the 
actions discussed in the Confirmatory Order.
    (4) Dr. Fernando agrees that the elements discussed in Section V 
will be incorporated into a Confirmatory Order, and agrees to waive the 
right to request a hearing regarding all or any part of this 
Confirmatory Order.


    Since Dr. Fernando agrees to take the actions as set forth in 
Section V, the NRC has concluded that its concerns can be resolved 
through issuance of this Order.
    I find that Dr. Fernando's commitments as set forth in Section V 
are acceptable and necessary and conclude that with these commitments 
the public health and safety and common defense and security are 
reasonably assured. In view of the foregoing, I have determined that 
public health and safety require that Dr. Fernando's commitments be 
confirmed by this Order. Based on the above and Dr. Fernando's consent, 
this Order is immediately effective upon issuance.

[[Page 64758]]


    Accordingly, pursuant to Sections 51, 53, 161b, 161i, 161o, 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 Part 70, it is hereby ordered, 
effective immediately, that:
    (1) Dr. Fernando will ensure that an independent assessment is 
conducted by a certified MRO (currently practicing MRO responsibilities 
in accordance with the most recent amendment to 10 CFR Part 26), as to 
the circumstances attending to the referral of the NFS senior 
executive. Such assessment will consider regulatory and professional 
directives and industry ``best practices'' standards.
    (2) Based on the above assessment, Dr. Fernando will develop 
lessons learned, and if indicated, implement corrective actions from 
the assessment.
    (3) Dr. Fernando and an MRO engaged in NRC-regulated activities 
will meet at least quarterly to review unique or noteworthy issues 
relevant to compliance with NRC regulations. In addition, Dr. Fernando 
will initiate a one time, mutual review of MRO processes and procedures 
with his Babcock and Wilcox Nuclear Owners Group (B&W NOG) counterpart.
    (4) Dr. Fernando will attend the American Association of Medical 
Review Officers (AAMRO) Drug Testing Symposium. NRC acknowledges that 
in February 2009, Dr. Fernando was recertified as an MRO by AAMRO. In 
March 2009, Dr. Fernando attended the Comprehensive Medical Review 
Officer Training provided by the AAMRO.
    (5) Dr. Fernando will submit a letter to a nationally recognized 
MRO certification program to request advice on how best to solicit 
information from the MRO community on the MRO referral process. Dr. 
Fernando agrees to take all reasonable efforts to carry out the 
measures suggested by the nationally recognized MRO certification 
    (6) Dr. Fernando agrees that actions listed in Section V.1-5 above 
will begin within 30 days of the date of NRC's issuance of this 
Confirmatory Order, and will be completed no later than one year from 
the date of issuance of the Confirmatory Order.
    (7) Upon completion of all of the actions identified in Section 
V.1-6 above, Dr. Fernando will submit a letter within 30 days to the 
NRC attesting to their completion. The letter will include details so 
as to allow the NRC to confirm completion of such activities.
    The Regional Administrator, NRC Region II, may relax or rescind, in 
writing, any of the above conditions upon a showing by Dr. Fernando of 
good cause.


    Any person adversely affected by this Confirmatory Order, other 
than Dr. Fernando, may request a hearing within 20 days of its 
publication in the Federal Register. 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 directed to the Director, 
Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, 
DC 20555-0001, and include a statement of good cause for the extension.
    If a person other than Dr. Fernando requests a hearing, that person 
shall set forth with particularity the manner in which his interest is 
adversely affected by this Order and shall address the criteria set 
forth in 10 CFR 2.309(d) and (f).
    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 
    All documents filed in NRC adjudicatory proceedings, including a 
request for hearing, a petition for leave to intervene, any motion or 
other document filed in the proceeding prior to the submission of a 
request for hearing or petition to intervene, and documents filed by 
interested governmental entities participating under 10 CFR 2.315(c), 
must be filed in accordance with the NRC E-Filing rule, (72 FR 49139, 
Aug. 28, 2007). The E-Filing process requires participants to submit 
and serve all adjudicatory documents over the internet, or in some 
cases to mail copies on electronic storage media. Participants may not 
submit paper copies of their filings unless they seek an exemption in 
accordance with the procedures described below.
    To comply with the procedural requirements of E-Filing, at least 
ten (10) days prior to the filing deadline, the participant should 
contact the Office of the Secretary by e-mail at 
[email protected], or by telephone at (301) 415-1677, to request 
(1) a digital ID certificate, which allows the participant (or its 
counsel or representative) to digitally sign documents and access the 
E-Submittal server for any proceeding in which it is participating; and 
(2) advise the Secretary that the participant will be submitting a 
request or petition for hearing (even in instances in which the 
participant, or its counsel or representative, already holds an NRC-
issued digital ID certificate). Based upon this information, the 
Secretary will establish an electronic docket for the hearing in this 
proceeding if the Secretary has not already established an electronic 
    Information about applying for a digital ID certificate is 
available on NRC's public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html. System requirements for accessing 
the E-Submittal server are detailed in NRC's ``Guidance for Electronic 
Submission,'' which is available on the agency's public Web site at 
http://www.nrc.gov/site-help/e-submittals.html. Participants may 
attempt to use other software not listed on the Web site, but should 
note that the NRC's E-Filing system does not support unlisted software, 
and the NRC Help Desk will not be able to offer assistance in using 
unlisted software.
    If a participant is electronically submitting a document to the NRC 
in accordance with the E-Filing rule, the participant must file the 
document using the NRC's on-line, Web-based submission form. In order 
to serve documents through EIE, users will be required to install a Web 
browser plug-in from the NRC Web site. Further information on the Web-
based submission form, including the installation of the Web browser 
plug-in, is available on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html.
    Once a participant has obtained a digital ID certificate and a 
docket has been created, the participant can then submit a request for 
hearing or petition for leave to intervene. Submissions should be in 
Portable Document Format (PDF) in accordance with NRC guidance 
available on the NRC public Web site at http://www.nrc.gov/site-help/e-submittals.html. A filing is considered complete at the time the 
documents are submitted through the NRC's E-Filing system. To be 
timely, an electronic filing must be submitted to the E-Filing system 
no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of 
a transmission, the E-Filing system time-stamps the document and sends 
the submitter an e-mail notice confirming receipt of the document. The 
E-Filing system also distributes an e-mail notice that provides access 
to the document to the NRC Office of the General Counsel and any others 
who have advised the Office of the Secretary that they wish to 
participate in the proceeding, so that the filer need not serve the 
documents on those

[[Page 64759]]

participants separately. Therefore, applicants and other participants 
(or their counsel or representative) must apply for and receive a 
digital ID certificate before a hearing request/petition to intervene 
is filed so that they can obtain access to the document via the E-
Filing system.
    A person filing electronically using the agency's adjudicatory E-
Filing system may seek assistance by contacting the NRC Meta-System 
Help Desk through the ``Contact Us'' link located on the NRC Web site 
at http://www.nrc.gov/site-help/e-submittals.html, by e-mail at 
[email protected], or by a toll-free call at (866) 672-7640. The 
NRC Meta-System Help Desk is available between 8 a.m. and 8 p.m., 
Eastern Time, Monday through Friday, excluding government holidays.
    Participants who believe that they have a good cause for not 
submitting documents electronically must file an exemption request, in 
accordance with 10 CFR 2.302(g), with their initial paper filing 
requesting authorization to continue to submit documents in paper 
format. Such filings must be submitted by: (1) First class mail 
addressed to the Office of the Secretary of the Commission, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: 
Rulemaking and Adjudications Staff; or (2) courier, express mail, or 
expedited delivery service to the Office of the Secretary, Sixteenth 
Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 
20852, Attention: Rulemaking and Adjudications Staff. Participants 
filing a document in this manner are responsible for serving the 
document on all other participants. Filing is considered complete by 
first-class mail as of the time of deposit in the mail, or by courier, 
express mail, or expedited delivery service upon depositing the 
document with the provider of the service. A presiding officer, having 
granted an exemption request from using E-Filing, may require a 
participant or party to use E-Filing if the presiding officer 
subsequently determines that the reason for granting the exemption from 
use of E-Filing no longer exists.
    Documents submitted in adjudicatory proceedings will appear in 
NRC's electronic hearing docket which is available to the public at 
http://ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant 
to an order of the Commission, or the presiding officer. Participants 
are requested not to include personal privacy information, such as 
social security numbers, home addresses, or home phone numbers in their 
filings, unless an NRC regulation or other law requires submission of 
such information. With respect to copyrighted works, except for limited 
excerpts that serve the purpose of the adjudicatory filings and would 
constitute a Fair Use application, participants are requested not to 
include copyrighted materials in their submission.


    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 V above shall be final 20 days from the date this 
Order is published in the Federal Register without further order or 
proceedings. If an extension of time for requesting a hearing has been 
approved, the provisions specified in Section V 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 order.

    Dated this 23rd day of November 2009.

    For the Nuclear Regulatory Commission.
Victor M. McCree,
Deputy Regional Administrator for Operations.
[FR Doc. E9-29200 Filed 12-7-09; 8:45 am]