[Federal Register Volume 77, Number 101 (Thursday, May 24, 2012)]
[Notices]
[Pages 31045-31047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12621]


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NUCLEAR REGULATORY COMMISSION

[NRC-2012-0115; IA-11-036]


Order Prohibiting Involvement in NRC-Licensed Activities; In the 
Matter of Jaime S[aacute]nchez

I

    Jaime S[aacute]nchez (Mr. S[aacute]nchez) is President of S&R 
Engineering (S&R, licensee) in San Juan, Puerto Rico. S&R held License 
No. 52-30913-01 issued by the U.S. Nuclear Regulatory Commission (NRC 
or Commission) pursuant to Title 10 of the Code of Federal Regulations 
(10 CFR) Part 30 on June 21, 2004. The license authorized the 
possession, storage, and use of licensed nuclear material in portable 
gauges to measure the physical properties of materials in accordance 
with the conditions specified therein. On October 29, 2009, the NRC 
issued an Order to S&R due to S&R's failure to pay its license fees. 
The Order prohibited S&R from using its licensed radioactive material 
(one portable moisture density gauge containing a cesium-137 sealed 
source and an americium-241 sealed source), and indicated that if S&R 
failed to pay the fee within the required 30 days, S&R was required to 
dispose of or transfer the gauge to an authorized recipient within 60 
days (by December 29, 2009) and to notify the NRC in writing of the 
disposition of the gauge. S&R did not pay the license fee, and did not 
notify the NRC that it had dispositioned the gauge.

II

    In a letter dated August 1, 2011, the NRC provided to Mr. 
S[aacute]nchez the results of an investigation initiated by the NRC's 
Office of Investigations (OI). The letter informed Mr. S[aacute]nchez 
that

[[Page 31046]]

the NRC was considering escalated enforcement action against him for an 
apparent violation of 10 CFR 30.10(a)(2), due to his deliberate 
submittal to the NRC of information that he knew to be incomplete or 
inaccurate in some respect material to the NRC during a telephone 
conversation on August 3, 2010. Specifically, the NRC determined that 
during the telephone call, Mr. S[aacute]nchez deliberately informed an 
NRC inspector that S&R had transferred its gauge to an authorized 
recipient when, in fact, S&R remained in possession of the gauge.
    In a separate letter dated August 1, 2011, the NRC informed Mr. 
S[aacute]nchez that the NRC was also considering escalated enforcement 
action against his company (S&R) for violations of NRC requirements 
including: (1) Providing information to the NRC that is not complete 
and accurate in all material respects as required by 10 CFR 30.9(a); 
(2) failing to comply with or respond to an NRC Order as required by 10 
CFR 2.202(b) regarding either payment of the licensing fee or properly 
disposing of or transferring the gauge; (3) failing to afford the NRC 
the opportunity to inspect materials, activities, and records under the 
regulations as required by 10 CFR 19.14(a); and (4) failing to use a 
minimum of two independent controls that form tangible barriers to 
secure S&R's portable gauge from unauthorized removal, when the 
portable gauge was not under S&R's direct control and constant 
surveillance, as required by 10 CFR 30.34(i).
    In those letters, the NRC offered S&R and Mr. S[aacute]nchez a 
choice to attend a Pre-decisional Enforcement Conference (PEC) or to 
request Alternative Dispute Resolution (ADR) to resolve any 
disagreement over: (1) Whether the violations occurred; and (2) the 
appropriate enforcement action. However, Mr. S[aacute]nchez did not 
respond to either letter or to the NRC staff's subsequent communication 
attempts.

III

    Consequently, on January 13, 2012, the NRC issued to S&R a Notice 
of Violation and Proposed Imposition of Civil Penalty (CP) in the 
amount of $14,000, and notification that the NRC would potentially 
impose additional daily CPs if S&R did not transfer the gauge to an 
authorized recipient within 30 days from the date of the letter. In 
that letter, the NRC also informed S&R that the NRC would forgo 
imposition of any CPs if S&R appropriately transferred its portable 
gauge to an authorized recipient within 30 days from the date of the 
letter. The NRC has verified that S&R appropriately transferred the 
gauge to Earth Engineers, Inc. within the required timeframe. 
Accordingly, on the date of this Order, the NRC informed S&R that the 
NRC would not impose any CPs in association with the violations 
attributed to the company, and that S&R's NRC license has been 
terminated.
    Separately, the NRC has concluded that Mr. S[aacute]nchez violated 
10 CFR 30.10(a)(2) by deliberately submitting to the NRC information 
that he knew to be inaccurate in some respect material to the NRC, 
when, during the aforementioned telephone conversation on August 3, 
2010, Mr. S[aacute]nchez deliberately informed an NRC inspector that 
S&R had transferred its gauge to an authorized recipient when, in fact, 
S&R remained in possession of the gauge. Mr. S[aacute]nchez's actions 
resulted in the NRC being uninformed as to the location of licensed 
material and, for a time, being precluded from inspecting the safe use 
and storage of that material. Mr. S[aacute]nchez's misrepresentation to 
the NRC (particularly, given his position as the President of S&R 
Engineering), and his failure to address or correct the misinformation, 
have raised serious doubts as to whether he can be relied upon to 
comply with the NRC requirements and to provide complete and accurate 
information to the NRC.
    As a result, I do not have the necessary assurance that: Mr. 
S[aacute]nchez, should he engage in NRC-licensed activities under any 
other NRC license, would perform NRC-licensed activities safely and in 
accordance with the NRC requirements; and that the health and safety of 
the public will be protected if Mr. S[aacute]nchez were permitted at 
this time to be involved in NRC-licensed activities.
    Therefore, the public health, safety, and interest require that Mr. 
S[aacute]nchez be prohibited from any involvement in NRC-licensed 
activities for a period of 5 years from the date of this Order.

IV

    Accordingly, pursuant to Sections 81, 161b, 161i, 182 and 186 of 
the Atomic Energy Act of 1954, as amended (the Act), and the 
Commission's regulations in 10 CFR 2.202, and 10 CFR 30.10, it is 
hereby ordered that:
    1. Jaime S[aacute]nchez is prohibited for 5 years from the date of 
this Order from engaging in any NRC-licensed activities. NRC-licensed 
activities are those activities that are conducted pursuant to a 
specific or general license issued by the NRC, including, but not 
limited to, those activities of Agreement State licensees conducted 
pursuant to the authority granted by 10 CFR 150.20.
    2. If Jaime S[aacute]nchez is currently involved with another 
licensee in NRC-licensed activities, he must immediately cease those 
activities, and inform the NRC of the name, address, and telephone 
number of the employer, and provide a copy of this order to the 
employer.
    3. Jaime S[aacute]nchez shall, within 20 days following acceptance 
of his first employment offer involving NRC-licensed activities or his 
becoming involved in NRC-licensed activities, as defined in Paragraph 
IV.1 above, provide notice of the name, address, and telephone number 
of the employer or the entity where he is, or will be, involved in the 
NRC-licensed activities to the Director, Office of Enforcement, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001. In the 
notification, Jaime S[aacute]nchez shall include a statement of his 
commitment to comply with the NRC's regulatory requirements and why the 
Commission should have confidence that he will now comply with 
applicable NRC requirements, and be complete and accurate in all 
communications with the NRC.
    The Director, OE, may relax or rescind any of the above conditions 
upon demonstration by Jaime S[aacute]nchez of good cause.

V

    In accordance with 10 CFR 2.202, Mr. S[aacute]nchez must, and any 
other person adversely affected by this Order may, submit an answer to 
this Order within 30 days of its publication in the Federal Register. 
In addition, Mr. S[aacute]nchez and any other person adversely affected 
by this Order may request a hearing on this Order within 30 days of its 
publication in the Federal Register. Where good cause is shown, 
consideration will be given to extending the time to answer or request 
a hearing. A request for extension of time must be directed to the 
Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, 
and include a statement of good cause for the extension.
    All documents filed in the NRC adjudicatory proceedings, including 
a request for a 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 NRC E-Filing rule (72 FR 49139, August 
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

[[Page 31047]]

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 10 
days prior to the filing deadline, the participant should contact the 
Office of the Secretary by email at [email protected], or by 
telephone at 301-415-1677, to request (1) a digital identification (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 
certificate). Based on this information, the Secretary will establish 
an electronic docket for the hearing in this proceeding if the 
Secretary has not already established an electronic docket.
    Information about applying for a digital ID certificate is 
available on the 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 the 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 Meta System 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 online, web-based submission form. In order to 
serve documents through the Electronic Information Exchange System, 
users will be required to install a web browser plug-in from the NRC's 
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 
a hearing or petition for leave to intervene. Submissions should be in 
portable document format (PDF) in accordance with the NRC guidance 
available on the NRC's 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 email notice confirming receipt of the document. The 
E-Filing system also distributes an email notice that provides access 
to the document to the NRC's 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 
document on those 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 contracting the NRC Meta System 
Help Desk through the ``Contact Us'' link located on the NRC's Web site 
at http://www.nrc/gov/site-help/e-submittals.html, by email at 
[email protected], or by a toll free call at 1-866-672-7640. 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 extension 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, MD 
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 using 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 the 
NRC's electronic hearing docket, which is available to the public at 
http://ehd1.nrc.gov/ehd, 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 submissions.
    If a person other than Mr. S[aacute]nchez 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).
    If a hearing is requested by a licensee or a person whose interest 
is adversely affected, the Commission will issue an Order designating 
the time and place of any hearings. If a hearing is held, the issue to 
be considered at such hearing shall be whether this 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 30 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 IV shall 
be final when the extension expires if a hearing request has not been 
received.

    Dated at Rockville, MD, this 17th day of May 2012.

    For the Nuclear Regulatory Commission.
Roy P. Zimmerman,
Director, Office of Enforcement.
[FR Doc. 2012-12621 Filed 5-23-12; 8:45 am]
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