[Federal Register Volume 80, Number 202 (Tuesday, October 20, 2015)]
[Rules and Regulations]
[Pages 63409-63420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-26590]



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  Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / 
Rules and Regulations  

[[Page 63409]]



NUCLEAR REGULATORY COMMISSION

10 CFR Parts 2 and 150

[NRC-2013-0132]
RIN 3150-AJ27


Hearings on Challenges to the Immediate Effectiveness of Orders

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is amending its 
regulations regarding challenges to the immediate effectiveness of NRC 
enforcement orders to clarify the burden of proof and to clarify the 
authority of the presiding officer to order live testimony in resolving 
these challenges.

DATES: This final rule is effective on November 19, 2015.

ADDRESSES: Please refer to Docket ID NRC-2013-0132 when contacting the 
NRC about the availability of information for this final rule. You may 
obtain publicly-available information related to this final rule by any 
of the following methods:
     Federal rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2013-0132. Address 
questions about NRC dockets to Carol Gallagher; telephone: 301-415-
3463; email: [email protected]. For technical questions contact 
the individual listed in the FOR FURTHER INFORMATION CONTACT section of 
this final rule.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly-available documents online in the 
ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``ADAMS Public Documents'' and 
then select ``Begin Web-based ADAMS Search.'' For problems with ADAMS, 
please contact the NRC's Public Document Room (PDR) reference staff at 
1-800-397-4209, 301-415-4737, or by email to [email protected]. The 
ADAMS accession number for each document referenced (if it is available 
in ADAMS) is provided the first time that it is mentioned in the 
SUPPLEMENTARY INFORMATION section.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room 01-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: Esther Houseman, Office of the General 
Counsel, telephone: 301-415-2267, email: [email protected]; or 
Eric Michel, Office of the General Counsel, telephone: 301-415-1177, 
email: [email protected]; U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    The U.S. Nuclear Regulatory Commission (NRC) is amending its 
regulations regarding the issuance of immediately effective orders to 
clarify the burden of proof in proceedings on challenges to the 
immediate effectiveness of such orders and the authority of the 
presiding officer in such proceedings to order live testimony. In NRC 
enforcement proceedings, the recipient of an order ordinarily may 
challenge the validity of that order before its terms become effective 
at a later specified date. However, in certain circumstances, the NRC 
may issue orders to regulated entities or individuals that are 
``immediately effective,'' meaning the order's terms are effective upon 
issuance and remain in effect even during the pendency of a challenge. 
These amendments confirm that the recipient of the immediately 
effective order has the burden to initiate a challenge regarding the 
order's immediate effectiveness and present evidence that the order, 
including the need for immediate effectiveness, is not based on 
adequate evidence. The amendments also clarify that the NRC staff 
ultimately bears the burden of persuasion that immediate effectiveness 
is warranted. Additionally, these amendments confirm that the presiding 
officer in a challenge to the immediate effectiveness of an order may 
order live testimony, including cross examination of witnesses, if it 
will assist in the presiding officer's decision. These are not 
substantive changes to the agency's enforcement procedures, but rather 
confirm existing burdens and presiding officer authority.
    In this final rule, the Commission is not adopting the previously 
proposed amendment \1\ that would have incorporated the concept of 
``deliberate ignorance'' as an additional basis upon which the NRC 
could take enforcement action against an individual for violating the 
rule. The Commission agrees with public commenters' concern that the 
subjectivity of the deliberate ignorance standard makes it difficult to 
implement. This difficulty would make the enforcement process more 
complex and burdensome, and any corresponding benefits would not 
outweigh these disadvantages. This decision is discussed in more detail 
in Section IV, ``Public Comment Analysis,'' of this document.
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    \1\ On February 11, 2014, the NRC published the proposed 
amendments in a proposed rule entitled, ``Deliberate Misconduct Rule 
and Hearings on Challenges to the Immediate Effectiveness of 
Orders'' (79 FR 8097). The NRC changed the title of this final rule 
to ``Hearings on Challenges to the Immediate Effectiveness of 
Orders'' to more clearly reflect that the proposed changes to the 
Deliberate Misconduct Rule were not adopted.
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Table of Contents

I. Background
II. Discussion
III. Opportunities for Public Participation
IV. Public Comment Analysis
V. Section-by-Section Analysis
VI. Regulatory Flexibility Certification
VII. Regulatory Analysis
VIII. Backfitting and Issue Finality
IX. Cumulative Effects of Regulation
X. Plain Writing
XI. National Environmental Policy Act
XII. Paperwork Reduction Act
XIII. Congressional Review Act
XIV. Compatibility of Agreement State Regulations
XV. Voluntary Consensus Standards

I. Background

    On January 4, 2006, the U.S. Nuclear Regulatory Commission (NRC) 
issued an immediately effective order to Mr. David Geisen, a former 
employee at the Davis-Besse Nuclear Power Station, barring him from 
employment in the nuclear industry for 5 years.\2\ The order

[[Page 63410]]

charged Mr. Geisen with deliberate misconduct in contributing to the 
submission of information to the NRC that he knew was not complete or 
accurate in material respects. The U.S. Department of Justice (DOJ) 
later obtained a grand jury indictment against Mr. Geisen on charges 
under 18 U.S.C. 1001 for submitting false statements to the NRC.\3\ In 
the criminal case, the judge gave the jury instructions under the 
prosecution's two alternative theories: The jury could find Mr. Geisen 
guilty if he either knew that he was submitting false statements or if 
he acted with deliberate ignorance of their falsity. The jury found Mr. 
Geisen guilty on a general verdict; that is, the jury found Mr. Geisen 
guilty without specifying whether it found Mr. Geisen acted out of 
actual knowledge or deliberate ignorance. The United States Court of 
Appeals for the Sixth Circuit upheld Mr. Geisen's conviction on 
appeal.\4\
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    \2\ David Geisen, LBP-09-24, 70 NRC 676 (2009), aff'd, CLI-10-
23, 72 NRC 210 (2010).
    \3\ United States v. Geisen, 612 F.3d 471, 485-86 (6th Cir. 
2010), cert. denied, 131 S. Ct. 1813 (2011), (citing United States 
v. Geisen, 2008 WL 6124567 (N.D. Ohio May 2, 2008)).
    \4\ Id. at 485-86.
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    In the parallel NRC enforcement proceeding, brought under the 
agency's Deliberate Misconduct Rule, Sec.  50.5 of title 10 of the Code 
of Federal Regulations (10 CFR), Mr. Geisen's criminal conviction 
prompted the NRC's Atomic Safety and Licensing Board (the Board) to 
consider whether Mr. Geisen was collaterally estopped \5\ from denying 
the same wrongdoing in the NRC proceeding.\6\ The Board found and the 
Commission upheld, on appeal, that collateral estoppel could not be 
applied because the NRC's Deliberate Misconduct Rule did not include 
deliberate ignorance and the general verdict in the criminal proceeding 
did not specify whether the verdict was based on actual knowledge or 
deliberate ignorance.\7\
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    \5\ Collateral estoppel precludes a defendant convicted in a 
criminal proceeding from challenging in a subsequent civil 
proceeding any facts that were necessary for the criminal 
conviction. Collateral estoppel applies to quasi-judicial 
proceedings such as enforcement hearings before the NRC. See, e.g., 
SEC v. Freeman, 290 F.Supp. 2d 401, 405 (S.D.N.Y. 2003) (``It is 
settled that a party in a civil case may be precluded from 
relitigating issues adjudicated in a prior criminal proceeding and 
that the Government may rely on the collateral estoppel effect of 
the conviction in support of establishing the defendant's liability 
in the subsequent civil action.'') (citations omitted).
    \6\ Geisen, LBP-09-24, 70 NRC at 709-26; see 10 CFR 50.5.
    \7\ The Board stated that ``the [NRC] Staff flatly and 
unmistakably conceded that the `deliberate ignorance' theory is not 
embraced within the `deliberate misconduct' standard that governs 
our proceedings.'' Geisen, LBP-09-24, 70 NRC at 715 (alteration 
added). In its decision, the Commission stated ``[t]he distinction 
between the court's `deliberate ignorance' standard and the [NRC's] 
`deliberate misconduct' standard applied in this case is highly 
significant, indeed, decisive. The Staff, when moving for collateral 
estoppel, itself conceded that `the 6th Circuit's deliberate 
ignorance instruction does not meet the NRC's deliberate misconduct 
standard'.'' Geisen, CLI-10-23, 72 NRC at 251 (emphasis in the 
original) (alteration added).
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    The lack of certainty as to the specific basis of the jury's 
verdict was significant, because if the verdict was based on actual 
knowledge, the Board could have applied collateral estoppel based on 
the NRC's identical actual knowledge standard and the same facts in the 
criminal case.\8\ However, because the general verdict could have been 
based on deliberate ignorance, the Board could not apply collateral 
estoppel, because the NRC does not recognize conduct meeting the 
deliberate ignorance knowledge standard as deliberate misconduct. The 
Commission affirmed the Board's decision.\9\ This outcome shows that 
the Deliberate Misconduct Rule, as presently written, does not provide 
for an enforcement action on the basis of deliberate ignorance and the 
Board cannot apply collateral estoppel where a parallel DOJ criminal 
prosecution proceeding may be based on a finding of deliberate 
ignorance.
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    \8\ Geisen, CLI-10-23, 72 NRC at 249.
    \9\ Id. at 254.
---------------------------------------------------------------------------

    In the Staff Requirements Memorandum (SRM) to SECY-10-0074, ``David 
Geisen, NRC Staff Petition for Review of LBP-09-24 (Aug. 28, 2009),'' 
dated September 3, 2010 (ADAMS Accession No. ML102460411), the 
Commission directed the NRC's Office of the General Counsel (OGC) to 
conduct a review of three issues: (1) How parallel NRC enforcement 
actions and DOJ criminal prosecutions affect each other, (2) the 
issuance of immediately effective enforcement orders in matters that 
DOJ is also pursuing, and (3) the degree of knowledge required for 
pursuing violations against individuals for deliberate misconduct. In 
2011, OGC conducted the requested review and provided recommendations 
to the Commission for further consideration. In response, in 2012, the 
Commission directed OGC to develop a proposed rule that would 
incorporate the deliberate ignorance standard into the Deliberate 
Misconduct Rule. As part of this effort, the Commission directed OGC to 
examine the definitions of deliberate ignorance from all Federal 
circuit courts to aid in developing the most appropriate definition of 
this term for the NRC. The Commission also directed OGC to clarify two 
aspects of the regulations regarding challenges to immediate 
effectiveness of NRC orders as part of this rulemaking: (1) The burden 
of proof and (2) the authority of the presiding officer to order live 
testimony in resolving such a challenge.
    This final rule amends 10 CFR 2.202, which governs challenges to, 
and the presiding officer's review of, the immediate effectiveness of 
an order. Currently, the Commission may make orders immediately 
effective under 10 CFR 2.202(a)(5) if it finds that the public health, 
safety, or interest so requires or if willful conduct caused a 
violation of the Atomic Energy Act of 1954, as amended (AEA), an NRC 
regulation, license condition, or previously issued Commission order. 
This final rule amends the NRC's regulations by clarifying the 
following: (1) Which party bears the burden of proof in a hearing on a 
challenge to the immediate effectiveness of an order, and (2) the 
authority of the presiding officer to call for live testimony in a 
hearing on a challenge to the immediate effectiveness of an order. In 
developing these amendments to 10 CFR 2.202, the NRC reviewed the way 
in which the Board has interpreted the burden of proof in hearings on 
challenges to the immediate effectiveness of an order. The NRC also 
reviewed its current regulations and practices regarding the authority 
of the presiding officer to call for live testimony in hearings on 
challenges to the immediate effectiveness of an order.
    This final rule also makes conforming amendments to 10 CFR 150.2 by 
adding a cross reference to 10 CFR 61.9b and replacing the cross 
reference to 10 CFR 71.11 with a cross reference to 10 CFR 71.8. These 
conforming amendments are necessary because when the NRC first 
promulgated the Deliberate Misconduct Rule in 1991, it failed to list 
10 CFR 61.9b as a cross reference in 10 CFR 150.2; and, although the 
NRC listed 10 CFR 71.11, which at the time was the 10 CFR part 70 
Deliberate Misconduct Rule, as a cross reference in 10 CFR 150.2, the 
NRC later redesignated the provision as 10 CFR 71.8 and failed to make 
a conforming amendment to update 10 CFR 150.2.
    As discussed further in the following sections, the Commission is 
not adopting in this final rule the previously proposed amendment to 
the Deliberate Misconduct Rule to incorporate the concept of deliberate 
ignorance as an additional basis upon which the NRC can take 
enforcement action against an individual for violating the rule.

Immediately Effective Orders

    The NRC's procedures to initiate formal enforcement action are 
found in subpart B of 10 CFR part 2. These regulations include 10 CFR 
2.202,

[[Page 63411]]

``Orders.'' An order is a written NRC directive to modify, suspend, or 
revoke a license; to cease and desist from a given practice or 
activity; or to take another action as appropriate.\10\ The 
Commission's statutory authority to issue an order is Section 161 of 
the AEA.\11\ The Commission may issue orders in lieu of or in addition 
to civil penalties.\12\ When the Commission determines that the conduct 
that caused a violation was willful or that the public health, safety, 
or interest requires immediate action, the Commission may make orders 
immediately effective, meaning the subject of the order does not have 
an opportunity for a hearing before the order goes into effect.\13\ 
Making enforcement orders immediately effective has been an integral 
part of 10 CFR 2.202 since 1962, and Section 9(b) of the Administrative 
Procedure Act (APA), 5 U.S.C. 558(c), expressly authorizes immediately 
effective orders.
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    \10\ 10 CFR 2.202(a).
    \11\ 42 U.S.C. 2201.
    \12\ Section 2.3.5 of the NRC Enforcement Policy (2013) (ADAMS 
Accession No. ML13228A199).
    \13\ 10 CFR 2.202(b).
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    On the same day that the Commission published the 1990 proposed 
Deliberate Misconduct Rule, ``Willful Misconduct by Unlicensed 
Persons,'' \14\ it also published a related proposed rule, ``Revisions 
to Procedures to Issue Orders,'' \15\ that would expressly allow the 
Commission to issue orders to unlicensed persons. The Commission may 
issue these orders ``when such persons have demonstrated that future 
control over their activities subject to the NRC's jurisdiction is 
deemed to be necessary or desirable to protect public health and safety 
or to minimize danger to life or property or to protect the common 
defense and security.'' \16\ This proposed rule concerned amendments to 
10 CFR 2.202 and other 10 CFR part 2 provisions.\17\ At the time of 
these proposed rules, the Commission's regulations only authorized the 
issuance of an order to a licensee. Therefore, the intent of the 1990 
proposed Deliberate Misconduct Rule and its companion proposed rule was 
to establish a mechanism to issue ``an order . . . to an unlicensed 
person who willfully causes a licensee to be in violation of Commission 
requirements or whose willful misconduct undermines, or calls into 
question, the adequate protection of the public health and safety in 
connection with activities regulated by the NRC under the [AEA].'' \18\ 
These proposed changes were adopted, with some modifications, in the 
1991 final Deliberate Misconduct Rule.\19\ Specifically, the 1991 final 
Deliberate Misconduct Rule amended 10 CFR 2.202 and other provisions of 
10 CFR part 2 (10 CFR 2.1, 2.201, 2.204, 2.700, and appendix C), to 
authorize the issuance of an order to unlicensed persons otherwise 
subject to the NRC's jurisdiction.
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    \14\ 55 FR 12374; April 3, 1990.
    \15\ 55 FR 12370; April 3, 1990.
    \16\ Id. at 12371.
    \17\ Id. at 12373-74.
    \18\ Id. at 12372.
    \19\ 56 FR 40664; August 15, 1991.
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    On July 5, 1990, the Commission published another proposed rule 
that would make additional changes to 10 CFR 2.202.\20\ These 
additional changes pertained to immediately effective orders. 
Primarily, the July 5, 1990, proposed rule would have required that 
challenges to immediately effective orders be heard expeditiously. The 
statement of considerations for the July 5, 1990, proposed rule noted 
that ``the Commission believes that a proper balance between the 
private and governmental interests involved is achieved by a hearing 
conducted on an accelerated basis.'' \21\ The statement of 
considerations also stated that a ``motion to set aside immediate 
effectiveness must be based on one or both of the following grounds: 
The willful misconduct charged is unfounded or the public health, 
safety or interest does not require the order to be made immediately 
effective.'' \22\
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    \20\ 55 FR 27645.
    \21\ Id.
    \22\ Id.
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    In addition, the July 5, 1990, proposed rule provided the following 
statement regarding the respective burdens of a party filing a motion 
to challenge the immediate effectiveness of an immediately effective 
order and of the NRC staff:

    The burden of going forward on the immediate effectiveness issue 
is with the party who moves to set aside the immediate effectiveness 
provision. The burden of persuasion on the appropriateness of 
immediate effectiveness is on the NRC staff.\23\
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    \23\ Id. at 27646.

After receiving public comments on the July 5, 1990, proposed rule, the 
Commission published a final rule on May 12, 1992.\24\ The Commission 
acknowledged in the May 12, 1992, final rule that ``an immediately 
effective order may cause a person to suffer loss of employment while 
the order is being adjudicated'' but recognized that the effects of 
health and safety violations are paramount over an individual's right 
of employment.\25\ Accordingly, the final rule amended 10 CFR 2.202(c) 
``to allow early challenges to the immediate effectiveness aspect of 
immediately effective orders.'' \26\ The final rule also provided for 
an expedited hearing on both the merits of the immediately effective 
order and a challenge to set aside immediate effectiveness. The 
presiding officer in an immediate effectiveness challenge must dispose 
of a person's motion to set aside the immediate effectiveness of the 
order ``expeditiously,'' generally within 15 days.\27\ Therefore, the 
Commission struck a balance between the governmental interests in 
protecting public health and safety and an interest in fairness by 
requiring that challenges to immediately effective orders be heard 
expeditiously.
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    \24\ 57 FR 20194.
    \25\ Id. at 20195.
    \26\ Id. at 20194.
    \27\ Id. at 20196. See also 10 CFR 2.202(c)(2)(i).
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Burden of Going Forward and Burden of Persuasion

    In opposing the immediate effectiveness aspect of an order, the 
party subject to the order, or respondent, must initiate the proceeding 
by filing affidavits and other evidence that state that the order and 
the NRC staff's determination that it is necessary to make the order 
immediately effective ``is not based on adequate evidence but on mere 
suspicion, unfounded allegations, or error.'' \28\ The respondent's 
obligation to challenge the order is known as the ``burden of going 
forward.'' \29\ Section 2.202, however, has been interpreted to mean 
that the NRC staff bears the ``burden of persuasion'' to demonstrate 
that the order itself, and the immediate effectiveness determination, 
are supported by ``adequate evidence.'' \30\ In a 2005 proceeding, the 
Board described what the NRC staff must prove, stating,
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    \28\ 10 CFR 2.202(c)(2)(i).
    \29\ United Evaluation Servs, Inc., LBP-02-13, 55 NRC 351, 354 
(2002).
    \30\ Id.

    [T]he staff must satisfy a two-part test: It must demonstrate 
that adequate evidence--i.e., reliable, probative, and substantial 
(but not preponderant) evidence--supports a conclusion that (1) the 
licensee violated a Commission requirement (10 CFR 2.202(a)(1)), and 
(2) the violation was `willful,' or the violation poses a risk to 
`the public health, safety, or interest' that requires immediate 
action (id. Sec.  2.202(a)(5)).\31\
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    \31\ Safety Light Corp. (Bloomsburg, Pennsylvania Site), LBP-05-
02, 61 NRC 53, 61 (2005) (emphasis in original).

Although Mr. Geisen never challenged the immediate effectiveness of the 
Commission's order, one of the Board's judges raised the concern that 
10 CFR 2.202(c)(2)(i) could be interpreted to place the burden of 
persuasion on the

[[Page 63412]]

party subject to the order to show that the order is based on mere 
suspicion, unfounded allegations, or error.\32\ This final rule 
clarifies that the burden of persuasion is the obligation of the NRC 
staff, not the party subject to the order.
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    \32\ Geisen, ``Additional Views of Judge Farrar,'' LBP-09-24, 70 
NRC at 801 n.12 (``To succeed under the terms of [10 CFR 
2.202(c)(2)(i)], the challenge brought by the Order's target must 
show that `the order, including the need for immediate 
effectiveness, is not based on adequate evidence but on mere 
suspicion, unfounded allegations, or error.' In addition to having 
the burden on immediate effectiveness, the target is apparently 
expected to address the merits at that point as well, as is 
indicated by the next sentence, which requires the challenge to 
`state with particularity the reasons why the order is not based on 
adequate evidence' and to `be accompanied by affidavits or other 
evidence relied on.' 10 CFR 2.202(c)(2)(i). All in 20 days, unless 
extended. Id. Sec.  2.202(a)(2).'') (emphasis in the original).
---------------------------------------------------------------------------

Authority of the Presiding Officer to Order Live Testimony

    The July 5, 1990, proposed rule's statement of considerations 
contemplated the possibility of an evidentiary hearing as part of a 
challenge to immediate effectiveness:

    It is expected that the presiding officer normally will decide 
the question of immediate effectiveness solely on the basis of the 
order and other filings on the record. The presiding officer may 
call for oral argument. However, an evidentiary hearing is to be 
held only if the presiding officer finds the record is inadequate to 
reach a proper decision on immediate effectiveness. Such a situation 
is expected to occur only rarely.\33\
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    \33\ 55 FR 27645-46.

The May 12, 1992, final rule, however, simply stated that ``[t]he 
presiding officer may call for oral argument but is not required to do 
so.'' \34\ Section 2.319 outlines the presiding officer's authority to 
``conduct a fair and impartial hearing according to law, and to take 
appropriate action to control the prehearing and hearing process, to 
avoid delay and maintain order,'' including the power to examine 
witnesses, but this power is not specified in 10 CFR 2.202. This final 
rule clarifies the presiding officer's authority to order live 
testimony on challenges to the immediate effectiveness of orders.
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    \34\ 57 FR at 20196.
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II. Discussion

Immediately Effective Orders

    This rule amends 10 CFR 2.202(c)(2) to clarify that in any 
challenge to the immediate effectiveness of an order, the NRC staff 
bears the burden of persuasion and the party challenging the order 
bears the burden of going forward.\35\ Specifically, the rule states 
that the NRC staff must show that (1) adequate evidence supports the 
grounds for the order and (2) immediate effectiveness is warranted.\36\
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    \35\ The party challenging the order has the obligation to 
initiate the proceeding, namely, by filing the appropriate motion 
under 10 CFR 2.202(c)(2)(i). This motion ``must state with 
particularity the reasons why the order is not based on adequate 
evidence and must be accompanied by affidavits or other evidence 
relied on.'' 10 CFR 2.202(c)(2)(i).
    \36\ The Administrative Procedure Act provides ``[e]xcept as 
otherwise provided by statute, the proponent of a rule or order has 
the burden of proof.'' 5 U.S.C. 556(d).
---------------------------------------------------------------------------

    This rule further amends 10 CFR 2.202(c)(2) to confirm the 
presiding officer's authority to order live testimony, including cross 
examination of witnesses, in hearings on challenges to the immediate 
effectiveness of orders if the presiding officer concludes that taking 
live testimony would assist in its decision on the motion. Similarly, 
the rule allows any party to the proceeding to file a motion requesting 
the presiding officer to order live testimony. The amendments allow the 
NRC staff, in cases where the presiding officer orders live testimony, 
the option of presenting its response through live testimony rather 
than a written response made within 5 days of its receipt of the 
motion. The NRC does not anticipate that permitting the presiding 
officer to allow live testimony would cause delay, and even if it were 
to cause delay, public health and safety would not be affected because 
the immediately effective order would remain in effect throughout the 
hearing on immediate effectiveness.
    The rule also amends 10 CFR 2.202(c)(2) to clarify that the 
presiding officer shall conduct any live testimony pursuant to its 
powers in 10 CFR 2.319, except that no subpoenas, discovery, or 
referred rulings or certified questions to the Commission shall be 
permitted for this purpose. Finally, the rule amends 10 CFR 2.202(c)(2) 
by dividing the paragraph into smaller paragraphs, adding a cross 
reference to 10 CFR 2.202(a)(5) (the regulation that authorizes the 
Commission to make an order immediately effective), and making other 
minor edits to improve clarity and readability.

Conforming Amendments

    Section 150.2, ``Scope,'' provides notice to Agreement State 
licensees conducting activities under reciprocity in areas of NRC 
jurisdiction that they are subject to the applicable NRC Deliberate 
Misconduct Rule provisions. When the NRC first promulgated the 
Deliberate Misconduct Rule in 1991, it failed to list 10 CFR 61.9b as a 
cross reference in 10 CFR 150.2. At the time, 10 CFR 150.2 listed 10 
CFR 30.10, 40.10, and 70.10 as the Deliberate Misconduct Rule 
provisions applicable to Agreement State licensees conducting 
activities under reciprocity in areas of NRC jurisdiction.
    On January 13, 1998, the NRC revised its regulations to extend the 
Deliberate Misconduct Rule to include applicants for or holders of 
certificates of compliance issued under 10 CFR part 71, ``Packaging and 
Transportation of Radioactive Material.'' \37\ This rule designated the 
10 CFR part 71 Deliberate Misconduct Rule provision as 10 CFR 
71.11.\38\ The NRC made a conforming amendment to 10 CFR 150.2 by 
listing 10 CFR 71.11 as a cross reference.\39\ The NRC later 
redesignated the provision as 10 CFR 71.8 \40\ but did not make a 
conforming amendment to update the cross reference in 10 CFR 150.2. The 
current 10 CFR 150.2 rule text still lists the 10 CFR part 71 
Deliberate Misconduct Rule provision as 10 CFR 71.11.
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    \37\ 63 FR 1890.
    \38\ Id. at 1899.
    \39\ Id. at 1901.
    \40\ In a 2004 rulemaking amending its regulations concerning 
the packaging and transport of radioactive materials, the NRC 
renumbered 10 CFR 71.11 to 10 CFR 71.8 (69 FR 3698, 3764, 3790; 
January 26, 2004).
---------------------------------------------------------------------------

    This rule makes conforming amendments to 10 CFR 150.2 by adding a 
cross reference to 10 CFR 61.9b and deleting the cross reference to 10 
CFR 71.11 and replacing it with a cross reference to 10 CFR 71.8.

III. Opportunities for Public Participation

    The proposed rule was published on February 11, 2014, for a 90-day 
public comment period that ended on May 12, 2014.\41\
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    \41\ 79 FR 8097.
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IV. Public Comment Analysis

    The NRC received comments from six commenters: The Nuclear Energy 
Institute, Inc. (NEI), the National Association of Criminal Defense 
Lawyers (NACDL), STARS Alliance LLC (STARS), Hogan Lovells LLP (Hogan 
Lovells), Troutman Sanders LLP (Troutman Sanders), and an individual, 
Mr. James Lieberman. All six provided comments on the proposed 
amendment to the Deliberate Misconduct Rule incorporating the concept 
of deliberate ignorance. One commenter, Mr. Lieberman, supported the 
amendment. The other five commenters opposed the amendment. All 
comments are summarized in this section, by topic. Additionally, two 
commenters (NEI and STARS) provided comments on the proposed amendments 
to 10 CFR

[[Page 63413]]

2.202(c) concerning the immediate effectiveness of orders. The NRC 
received no comments on the proposed amendments to 10 CFR 150.2.

Comments Concerning Deliberate Ignorance

Comment 1: Confusion and Practical Difficulties Associated With 
Distinguishing Between Deliberate Ignorance and Carelessness, 
Recklessness, or Negligence
    The NEI, NACDL, STARS, Hogan Lovells, and Troutman Sanders 
commented that deliberate ignorance is an inherently vague and highly 
subjective criminal knowledge standard and that distinguishing 
deliberate ignorance from other, non-deliberate states of mind, such as 
carelessness, recklessness, or negligence, would be difficult in 
practice. These commenters expressed concern that adoption of the 
deliberate ignorance standard into the NRC's regulations may confuse 
NRC staff and could possibly result in enforcement action against 
individuals who do not commit deliberate violations.
    Specifically, Hogan Lovells expressed concern that NRC staff would 
have difficulty assessing what an individual ``subjectively believed'' 
and whether the individual deliberately took action to ``avoid 
learning'' a material fact. The NEI commented that the ``complex, 
legalistic deliberate ignorance standard would be difficult to apply 
and would promote unnecessary and wasteful litigation without a 
counterbalancing benefit to the public.'' The NACDL expressed concern 
that the ``theoretical distinction between a person who is deliberately 
ignorant and one who is reckless or negligent'' would be ``almost 
impossible to maintain'' in the NRC enforcement setting. As additional 
support for these concerns, NEI, STARS, and Hogan Lovells stated that 
legal scholars and courts, including the U.S. Court of Appeals for the 
District of Columbia Circuit (D.C. Circuit), have cautioned that a 
``deliberate ignorance'' jury instruction in Federal criminal trials 
should only be used sparingly because of the heightened risk that 
defendants may be inadvertently or impermissibly convicted on a lesser 
basis than deliberate ignorance, such as recklessness or negligence. 
The NACDL, NEI, and Troutman Sanders also argued that in the majority 
of cases evidence used to support a finding of deliberate ignorance 
would also serve as circumstantial evidence of actual knowledge, 
thereby further diminishing the utility of the proposed rule.
    One commenter, Mr. Lieberman, expressed support for the 
incorporation of the deliberate ignorance standard because the text of 
the rule ``clearly'' distinguished deliberate ignorance from persons 
who act with recklessness or careless indifference. Mr. Lieberman 
recommended that the Commission provide several hypothetical examples 
of how and under what circumstances the deliberate ignorance standard 
might be applied in the future to more clearly explain how the NRC 
staff would differentiate between deliberate ignorance and careless 
disregard in practice.
    NRC Response: The Commission agrees with the comments expressing 
concern that the difficulties in implementing the deliberate ignorance 
standard would likely outweigh its corresponding benefits. The text of 
the proposed rule contains multiple subjective elements that would 
require NRC staff to assess and demonstrate the subjective belief for 
an individual's actions or inactions. The Commission believes the text 
of the proposed rule correctly defines ``deliberate ignorance'' in such 
a way as to distinguish it from careless disregard or other, non-
deliberate standards.\42\ However, after further consideration of the 
difficulties in assessing the facts of a case against this separate 
intent standard, the Commission has decided not to adopt its proposed 
amendment to incorporate a deliberate ignorance standard into the 
Deliberate Misconduct Rule. In this regard, the NRC staff already 
assesses cases against two intent standards cognizable in our 
enforcement process--deliberateness involving actual knowledge, and all 
other forms of willfulness, including careless disregard. Careless 
disregard is different only in degree from the new standard of 
deliberate ignorance and could frustrate the efficiency of the 
enforcement process, at least initially, until guidance were issued and 
enforcement experience established. The Commission also anticipates 
that, in most NRC enforcement cases, evidence supporting deliberate 
ignorance would also serve as circumstantial evidence supporting actual 
knowledge, further diminishing the utility of the proposed rule at this 
time.\43\ Multiple Federal circuits have characterized deliberate 
ignorance jury instructions as means to properly inform juries that a 
``charade of ignorance'' can serve as circumstantial proof of guilty 
knowledge.\44\ Therefore, the benefits associated with the deliberate 
ignorance standard would likely not outweigh the practical difficulties 
of its implementation, particularly given that the Commission expects 
that cases where evidence supports a deliberate ignorance finding but 
not actual knowledge will be rare.
---------------------------------------------------------------------------

    \42\ The proposed rule text mirrored the definition provided by 
the United States Supreme Court in Global-Tech Appliances, Inc. v. 
SEB S.A., 131 S. Ct. 2060 (2011).
    \43\ See, e.g., United States v. Arbizo, 833 F.2d 244, 247, 248-
49 (10th Cir. 1987) (``One can in fact not know many detailed facts 
but still have enough knowledge to demonstrate consciousness of 
guilty conduct sufficient to satisfy the `knowing' element of the 
crime . . . Arbizo's case presents evidence supporting both actual 
knowledge and deliberate avoidance of knowledge of some details of 
the transaction, either of which justify the [guilty] verdict . . . 
.'').
    \44\ See, e.g., U.S. v. Conner, 537 F.3d 480, 486 (5th Cir. 
2008); U.S. v. Delreal-Ordones, 213 F.3d 1263, 1269 (10th Cir. 
2000).
---------------------------------------------------------------------------

    The Commission acknowledges Mr. Lieberman's support for the rule 
and, as previously stated, agrees that the text of the proposed rule 
accurately distinguishes deliberate ignorance from non-deliberate 
standards, including recklessness, negligence, and carelessness. 
However, for the reasons previously stated, the Commission is not 
adopting in this final rule the proposed amendment to the Deliberate 
Misconduct Rule.
Comment 2: Lack of a Compelling Justification
    The NEI, NACDL, STARS, Hogan Lovells, and Troutman Sanders all 
commented that the proposed rule failed to provide a compelling 
justification for incorporating the deliberate ignorance standard into 
the Deliberate Misconduct Rule. Several of these commenters stated that 
the only justification that the NRC provided for expanding the scope of 
the rule was the NRC staff's inability to invoke collateral estoppel in 
the Geisen case. These commenters stated that expanding the Deliberate 
Misconduct Rule cannot be justified by a single case in the Deliberate 
Misconduct Rule's 25-year history and that to fashion a rule to fit a 
single case is both unnecessary and bad policy. The NEI commented that 
the Commission should not view the Geisen proceedings as illustrative 
of an additional or unfair ``burden'' that the NRC staff must overcome 
in deliberate misconduct enforcement cases. Instead, the case simply 
illustrated the NRC staff's responsibility in carrying its burden when 
issuing an enforcement order and that the NRC should not be able to 
dispense with this responsibility by amending the Deliberate Misconduct 
Rule.
    The NEI and Hogan Lovells also argued that the statement in the 
proposed rule that ``deficiencies in the

[[Page 63414]]

Deliberate Misconduct Rule became apparent'' in the Geisen case was 
incorrect because the Geisen case was not a deliberate ignorance case. 
Rather, the NRC's order only alleged that Mr. Geisen had actual 
knowledge of the falsity of the statements that he submitted to the 
NRC, and that the Atomic Safety and Licensing Board agreed that the 
case was only an actual knowledge case. Therefore, according to the 
commenters, the NRC should not use the Geisen case as a basis for the 
rule. The commenters noted that, when promulgating the original 
Deliberate Misconduct Rule in 1991, the Commission stated that the 
range of actions subject to the rule was not expected to ``differ 
significantly'' from those that might subject an individual to criminal 
prosecution, and the commenters noted that one case in nearly 25 years 
does not rise to the level of a ``significant'' difference.
    NRC Response: The Commission disagrees with this comment. Although 
the Commission recognizes that the benefits of the rule would be 
limited because it will likely prove decisive in few cases, the 
Commission disagrees with the comment that the agency lacked adequate 
justification to consider modification of the regulations to address 
deliberate ignorance. When promulgating the Deliberate Misconduct Rule 
in 1991, the Commission stated that deliberate misconduct is a 
significant and serious matter that poses a distinct threat to public 
health and safety.\45\ The NRC's inability to invoke collateral 
estoppel in the Geisen proceeding was not the sole justification for 
proposing to amend the Deliberate Misconduct Rule. Rather, the 
Commission has always considered willful violations of NRC requirements 
to be of particular concern because the NRC's regulatory program is 
dependent on licensees and their contractors, employees, and agents to 
act with integrity and communicate with candor. Therefore, the outcome 
of the Geisen proceeding prompted the Commission to reevaluate the 
Deliberate Misconduct Rule.
---------------------------------------------------------------------------

    \45\ 56 FR 40664, 40674; August 15, 1991.
---------------------------------------------------------------------------

    The Commission also disagrees with the comment that the Geisen case 
was not a deliberate ignorance case. While the NRC staff did allege 
only actual knowledge throughout the enforcement proceeding, the NRC 
staff did not pursue a deliberate ignorance theory because it conceded 
deliberate ignorance was not a basis upon which it could pursue 
enforcement action under the Deliberate Misconduct Rule as currently 
written.\46\ Conversely, DOJ's parallel criminal prosecution of Mr. 
Geisen in Federal court was based on alternate theories of actual 
knowledge or deliberate ignorance. The district court provided the 
deliberate ignorance jury instruction, and Mr. Geisen was convicted on 
a general verdict. On appeal to the U.S. Court of Appeals for the Sixth 
Circuit (Sixth Circuit), Mr. Geisen challenged the district court's 
decision to provide the deliberate ignorance jury instruction.\47\ The 
Sixth Circuit reiterated that ``a deliberate ignorance instruction is 
warranted to prevent a criminal defendant from escaping conviction 
merely by deliberately closing his eyes to the obvious risk that he is 
engaging in unlawful conduct,'' but cautioned that this instruction 
should be used sparingly because of the heightened risk of conviction 
based on mere negligence, carelessness, or ignorance.\48\ Under this 
standard, the court found the instruction to be proper because the 
district court's instruction was a correct statement of the law and 
included a limiting instruction--that ``carelessness, or negligence, or 
foolishness on [the defendant's] part is not the same as knowledge and 
is not enough to convict'' foreclosed the possibility that the jury 
could erroneously convict Geisen on the basis of negligence or 
carelessness.\49\ Moreover, the court found that the evidence supported 
a conviction based on either actual knowledge or deliberate 
ignorance.\50\ Had the deliberate ignorance standard been incorporated 
into the NRC's Deliberate Misconduct Rule, collateral estoppel would 
have been available to the NRC staff in the Geisen matter.
---------------------------------------------------------------------------

    \46\ See David Geisen, LBP-09-24, 70 NRC 676, 715 (2009); 
Geisen, CLI-10-23, 72 NRC 210, 251 (2010).
    \47\ United States v. Geisen, 612 F.3d 471, 485 (6th Cir. 2010).
    \48\ Id. at 485-86 (citations and internal quotation marks 
omitted).
    \49\ Id.
    \50\ Id. at 487.
---------------------------------------------------------------------------

    As previously stated, the Commission is not adopting the proposed 
amendment to the Deliberate Misconduct Rule because the practical 
difficulties are expected to outweigh the potential benefits gained 
from the rule.
Comment 3: Previous Rejection of the Deliberate Ignorance Standard
    The NEI stated that the proposed rule would conflict with the 
Commission's decision in the 1991 Deliberate Misconduct Rule to exclude 
from the rule violations based on careless disregard and negligence. 
Hogan Lovells stated that the Commission rejected the deliberate 
ignorance standard when it promulgated the original Deliberate 
Misconduct Rule.
    NRC Response: The Commission disagrees with the comment. Although 
the Commission is not adopting the proposed amendment to the Deliberate 
Misconduct Rule due to the practical difficulties associated with 
applying the deliberate ignorance standard, the Commission disagrees 
with comments suggesting that the deliberate ignorance standard was 
previously analyzed and explicitly rejected when the Commission 
promulgated the original Deliberate Misconduct Rule in 1991. The 
commenter points to a single sentence in the statement of 
considerations for the proposed rule that discussed ``careless 
disregard,'' which uses the phrase ``a situation in which an individual 
blinds himself or herself to the realities of whether a violation has 
occurred or will occur.'' \51\ The proposed rule and final rule did not 
make any other reference related to willful blindness or deliberate 
ignorance and did not contain detailed discussion on the standards.
---------------------------------------------------------------------------

    \51\ 55 FR 12375; April 3, 1990.
---------------------------------------------------------------------------

    The Commission eventually eliminated ``careless disregard'' from 
the final rule in response to public comments, which Hogan Lovells 
characterizes as the Commission's ``considered and intentional 
decision'' to exclude deliberate ignorance from the rule. However, the 
Commission disagrees that this limited discussion amounts to an express 
rejection of the deliberate ignorance standard. In the 1991 final rule, 
the Commission did not focus on the applicability of collateral 
estoppel in a parallel criminal action, which was one of the 
justifications for the proposed rule. Further, rejection of a proposal 
under previous rulemaking would not prevent future Commissions from 
reconsidering the matter and reaching a different conclusion. As 
previously stated, the NRC is not adopting the proposed amendment to 
the Deliberate Misconduct Rule over concerns that practical 
difficulties with its implementation are expected to outweigh the 
potential benefits.
Comment 4: Unsettled Judicial Precedent
    The NEI, Hogan Lovells, and STARS stated that the proposed rule is 
premature because of unsettled judicial precedent. The NEI and Hogan 
Lovells cited as support the D.C. Circuit's statements in United States 
v. Alston-Graves about the use of the deliberate ignorance 
standard.\52\ The NEI also stated that the DC Circuit's opinion

[[Page 63415]]

should carry substantial weight in deciding whether to adopt the 
deliberate ignorance standard because the DC Circuit is the only 
Federal circuit court that always has jurisdiction and venue to 
consider challenges to NRC enforcement orders.
---------------------------------------------------------------------------

    \52\ 435 F.3d 331 (D.C. Cir. 2006).
---------------------------------------------------------------------------

    Additionally, NEI and Hogan Lovells stated that the Supreme Court 
case Global-Tech Appliances, Inc. v. SEB, S.A., is not directly 
applicable because it was a patent case, not a criminal case. 
Therefore, as Justice Kennedy noted in his dissent in the case, the 
Court was not briefed on whether to endorse the deliberate ignorance 
standard for all criminal cases requiring the government to prove 
knowledge.\53\ The NEI and Hogan Lovells also noted that Federal courts 
most commonly apply the deliberate ignorance standard in drug cases.
---------------------------------------------------------------------------

    \53\ Global-Tech Appliances, Inc. v. SEB, S.A., 131 S. Ct. 2060, 
2073 (2011) (Kennedy, J., dissenting).
---------------------------------------------------------------------------

    NRC Response: The Commission disagrees with the comment. Although 
the Commission is not adopting the proposed amendment to the Deliberate 
Misconduct Rule due to the practical difficulties associated with 
applying the deliberate ignorance standard, the Commission disagrees 
that judicial precedent in this area is unsettled such that the 
Commission's proposal to adopt the deliberate ignorance standard is 
premature. In the words of the Supreme Court, the doctrine of willful 
blindness is ``well established'' in the Federal courts.\54\ The 
history of the deliberate ignorance standard is quite long--the concept 
has been endorsed and applied in criminal cases for more than 100 
years. The Supreme Court endorsed a similar concept in 1899 in Spurr v. 
United States.\55\ In 1976, the Ninth Circuit in United States v. 
Jewell crafted the modern formulation of the deliberate ignorance 
standard that Federal courts have since adopted and applied.\56\ The 
concept of deliberate ignorance is now widely accepted in the Federal 
courts, which commonly give and uphold deliberate ignorance jury 
instructions.\57\
---------------------------------------------------------------------------

    \54\ Id. at 2068-69 (majority opinion).
    \55\ See id. at 2069.
    \56\ 532 F.2d 697 (9th Cir. 1976). See also, e.g., United States 
v. Caminos, 770 F.2d 361, 365 (3d Cir. 1985) (``The charge, known as 
a `deliberate ignorance' charge, originated in United States v. 
Jewell.'').
    \57\ Global-Tech, 131 S. Ct. at 2069; Alston-Graves, 435 F.3d at 
338.
---------------------------------------------------------------------------

    In Alston-Graves, the D.C. Circuit ruled on the appropriateness of 
a deliberate ignorance instruction and found that the lower court 
committed harmless error giving the instruction--not because the 
instruction itself is improper but because in this particular case the 
prosecution failed to present sufficient evidence to support it.\58\ At 
no point in Alston-Graves did the D.C. Circuit reject the deliberate 
ignorance standard. Indeed, the court acknowledged that it had 
previously supported the concept of deliberate ignorance in dicta in a 
prior case.\59\
---------------------------------------------------------------------------

    \58\ Alston-Graves, 435 F.3d at 341-42.
    \59\ Id. at 340 (citing United States v. Mellen, 393 F.3d 175, 
181 (D.C. Cir. 2004)).
---------------------------------------------------------------------------

    The Commission disagrees with the comment that it should give the 
D.C. Circuit's opinion in Alston-Graves more weight relative to other 
Federal circuits. The Hobbs Act, which NEI cited as providing the D.C. 
Circuit with jurisdiction and venue over all challenges to NRC 
enforcement orders, also states that jurisdiction and venue is proper 
in any court of appeals in which the petitioner resides or has its 
principal office.\60\ Non-licensed individuals challenging enforcement 
actions could file such challenges where they reside. Therefore, the 
Commission believes that it would be unwise to give additional weight 
to the D.C. Circuit's decision not to fully embrace the deliberate 
ignorance standard and relatively less weight to every other Federal 
circuit, which have each more fully embraced the deliberate ignorance 
standard.\61\
---------------------------------------------------------------------------

    \60\ 28 U.S.C. 2342(4), 2343.
    \61\ The First, Third, Fifth, Sixth, Seventh, Eighth, Ninth, 
Tenth, and Eleventh Circuit Courts of Appeals have incorporated 
willful blindness or deliberate ignorance into their pattern or 
model jury instructions. Pattern or model jury instructions are 
plain language formulations of case law that judges may provide to 
juries as legal explanations. These jury instructions are given 
legal weight through their use in trials and subsequent approval of 
that use on appeal. The Second Circuit, see, e.g., United States v. 
Coplan, 703 F.3d 46 (2d Cir. 2012), and Fourth Circuit, see, e.g., 
United States v. Poole, 640 F.3d 114 (4th Cir. 2011), have applied 
deliberate ignorance or willful blindness in case law.
---------------------------------------------------------------------------

    Additionally, the Commission disagrees with the comment that the 
Supreme Court's Global-Tech decision is inapplicable. The Court 
acknowledged that it was not briefed on the question of whether to 
endorse the deliberate ignorance standard for all criminal cases 
requiring the government to prove knowledge. In rebutting Justice 
Kennedy's dissent, the Court stated that it could think of no reason to 
``protect . . . parties who actively encourage others to violate patent 
rights and who take deliberate steps to remain ignorant of those rights 
despite a high probability that the rights exist and are being 
infringed.'' \62\ The majority's rationale applies with equal force to 
nuclear regulation. Moreover, although Global-Tech is a civil case, it 
relied on criminal cases to distill a definition of deliberate 
ignorance and several courts of appeals have referenced or applied 
Global-Tech in criminal jury instructions and criminal sentencing.\63\ 
Additionally, Federal circuits have approved application of the 
deliberate ignorance standard in a variety of criminal and civil 
cases.\64\
---------------------------------------------------------------------------

    \62\ Global-Tech Appliances, Inc. v. SEB, S.A., 131 S. Ct. 2060, 
2069 n.8 (2011).
    \63\ See, e.g., United States v. Goffer, 721 F.3d 113, 127-28 
(2d Cir. 2013); United States v. Brooks, 681 F.3d 678, 702 n.19 (5th 
Cir. 2012); United States v. Butler, 646 F.3d 1038, 1041 (8th Cir. 
2011).
    \64\ See, e.g., United States v. Goffer, 721 F.3d 113, (2d Cir. 
2013) (upholding a deliberate ignorance jury instruction in a case 
involving charges of conspiracy to commit securities fraud and 
securities fraud); United States v. Yi, 704 F.3d 800 (9th Cir. 2013) 
(upholding a deliberate ignorance jury instruction in a case 
involving a charge of conspiracy to violate the Clean Air Act); 
United States v. Brooks, 681 F.3d 678 (5th Cir. 2012) (affirming 
provision of the deliberate ignorance jury instruction in a case 
involving charges of false reporting of natural gas trades in 
violation of the Commodity Exchange Act and the federal wire fraud 
statute); United States v. Jinwright, 683 F.3d 471 (4th Cir. 2012) 
(finding the provision of the deliberate ignorance instruction was 
not an abuse of discretion in a case involving charges of a 
conspiracy to defraud and tax evasion); Tommy Hilfiger Licensing, 
Inc. v. Goody's Family Clothing, Inc., 2003 WL 22331254 (N.D. Ga. 
2003) (applying a deliberate ignorance standard to a Section 1117 
trademark infringement claim).
---------------------------------------------------------------------------

    As previously stated, the NRC is not adopting the proposed 
amendment to the Deliberate Misconduct Rule because the practical 
difficulties with its implementation would likely outweigh the 
potential benefits.
Comment 5: Lack of Guidance
    The NEI and STARS stated that the NRC failed to issue draft 
guidance with the proposed rule and should not make the final rule 
effective until after the NRC publishes draft guidance for public 
comment and then finalizes that guidance. The NEI stated that NRC 
policy requires that the agency issue draft guidance in parallel with 
proposed rules, citing the SRM to SECY-11-0032, ``Consideration of the 
Cumulative Effects of Regulation in the Rulemaking Process,'' dated 
October 11, 2011 (ADAMS Accession No. ML112840466). The NEI further 
stated that the final rule should require the Director of the Office of 
Enforcement to formally certify to the Commission that he or she has 
reviewed the staff's application of deliberate ignorance before issuing 
any violation relying on the standard. The NEI also suggested that the 
NRC provide examples of circumstances that are categorically excluded 
(i.e., safe harbors) from enforcement on the basis of deliberate 
ignorance.
    Mr. Lieberman expressed support for the proposed rule but also 
suggested that the NRC provide hypothetical examples of conduct that 
does and does

[[Page 63416]]

not satisfy the deliberate ignorance standard in the statement of 
considerations for the final rule.
    NRC Response: The Commission is in general agreement that, if 
adopted, the rule would benefit from the development of implementing 
guidance. However, as stated previously, the Commission is has decided 
not to adopt the proposed amendments to the Deliberate Misconduct Rule. 
Therefore, there is no need for draft guidance as requested by the 
commenters.
Comment 6: Proposed Rule Would Discourage Participation in Licensed 
Activities and Is Not Necessary To Deter Deliberate Misconduct
    The NEI commented that the proposed rule would discourage 
participation in licensed activities and nuclear employment and noted 
that the Commission acknowledged this concern in the 1991 Deliberate 
Misconduct Rule.
    The NEI commented that the proposed rule is not necessary for 
deterrent effect because the risk of criminal prosecution is a 
sufficient deterrent. The commenter also stated that, rather than 
expanding the Deliberate Misconduct Rule to encompass more individual 
behavior, the NRC still has the option in situations where an 
individual engages in improper conduct beyond the reach of the current 
Deliberate Misconduct Rule to issue sanctions to the company to address 
the NRC's concerns.
    NRC Response: The Commission acknowledges the commenter's concern 
with respect to participation and employment in the nuclear field and 
notes that commenters raised and the Commission responded to a similar 
concern with respect to the 1991 Deliberate Misconduct Rule.\65\ The 
Commission also acknowledges that the agency continues to have the 
ability to take enforcement action against a licensee for an 
individual's conduct that results in a violation of NRC requirements 
but does not amount to deliberate misconduct. However, as stated 
previously, the Commission has decided not to adopt the proposed 
changes to the Deliberate Misconduct Rule because practical 
difficulties outweigh the potential benefits. Therefore the Commission 
did not reach this issue.
---------------------------------------------------------------------------

    \65\ 56 FR 40675; August 15, 1991.
---------------------------------------------------------------------------

Comments Concerning Immediately Effective Orders

    Citing statements from the Geisen Board majority and the additional 
statement from Judge Farrar, NEI and STARS stated that immediately 
effective orders should be issued less frequently and be required to 
contain greater detail. These commenters also stated that the NRC staff 
should be required to release the Office of Investigations report and 
all evidence to the individual challenging the order in such a 
proceeding. The commenters also stated that the Commission should 
further define what constitutes ``adequate evidence'' for immediate 
effectiveness challenge purposes. The commenters suggested revising 10 
CFR 2.202(a)(5) to remove the reference to ``willful'' violations 
because the NRC need not make an order immediately effective solely 
based on the violation's willfulness.
    The NEI and STARS proposed further changes to 10 CFR 
2.202(c)(2)(ii) to clarify that the person challenging an immediately 
effective enforcement order need not testify in such a hearing because 
doing so may compromise his or her Fifth Amendment right against self-
incrimination. The commenters also advocated including a requirement 
imposing more stringent requirements and qualifications for persons 
testifying on behalf of the NRC staff in challenges to immediately 
effective orders. Additionally, the commenters stated that the final 
rule should include an additional sentence stating that if the 
presiding officer orders live testimony, the parties may cross examine 
witnesses when it would assist the presiding officer's decision on the 
motion to set aside the immediate effectiveness of the order.
    The NEI and STARS commented that the revision to 10 CFR 
2.202(c)(2)(iii) should also require that the NRC staff reply to a 
motion in writing, rather than providing the option to respond orally, 
in order to prevent the staff's ability to ``ambush'' or ``sandbag'' 
the individual challenging the order. These commenters also stated that 
the final rule should make clear that NRC staff cannot use this 
opportunity to expand the scope of arguments set forth in the original 
immediately effective order.
    The NEI and STARS commented that the final rule should revise 10 
CFR 2.202(c)(2)(viii) to require that if the presiding officer sets 
aside an immediately effective order, the order setting aside immediate 
effectiveness will not be stayed automatically and will only be stayed 
if the NRC staff files and the Commission grants a motion for a stay 
under 10 CFR 2.342.
    NRC Response: The Commission disagrees with these comments and 
declines to adopt these changes to the NRC's process for issuing and 
adjudicating immediately effective orders. The proposed rule sought 
comments on the changes to 10 CFR 2.202(c); however, as stated in the 
proposed rule, these changes were intended to clarify evidentiary 
burdens and the authority of the presiding officer. The final rule 
clarifies that the NRC staff bears the burden of persuasion in hearings 
challenging the immediate effectiveness of orders and clarifies that 
the presiding officer has authority pursuant to 10 CFR 2.319 to order 
live testimony. The final rule also clarifies how live testimony can be 
requested and in what manner it may take form. The final rule also 
contains non-substantive changes intended to improve the clarity and 
readability of 10 CFR 2.202 by dividing the lengthy paragraph (c) into 
shorter paragraphs.
    Several of the commenters' proposed changes are either already 
addressed in this final rulemaking, or the current rules are adequately 
flexible to address their concerns without adopting their proposed 
changes. For example, with respect to the comment recommending that if 
the presiding officer orders live testimony, then the parties may cross 
examine witnesses when it would assist the presiding officer's decision 
on the motion to set aside the immediate effectiveness of the order, 
the presiding officer already has the power to order cross examination 
pursuant to 10 CFR 2.319. Additionally, 10 CFR 2.319 currently 
describes the duty of the presiding officer in an NRC adjudication to 
conduct a fair and impartial hearing and to take the necessary action 
to regulate the course of the hearing and the conduct of its 
participants. Parties can direct concerns that the NRC staff is 
inappropriately expanding the scope of argument to the presiding 
officer for resolution pursuant to this authority. The Commission does 
not agree with concerns that the NRC staff should reply in writing in 
advance of live testimony to prevent it from ``ambushing'' the 
individual challenging the order. If testimony of individuals is 
truthful and complete, knowing the staff's response in advance of 
testifying should have little bearing on its substance. Further, with 
respect to the commenters' constitutional concerns, it is well 
established that the Fifth Amendment privilege against self-
incrimination can be asserted in administrative proceedings.\66\ 
Parties have invoked the privilege in NRC enforcement proceedings, 
including the Geisen proceeding.\67\ Given the availability of

[[Page 63417]]

the privilege in NRC enforcement proceedings, the Commission declines 
to adopt the proposed change.
---------------------------------------------------------------------------

    \66\ See Chavez v. Martinez, 538 U.S. 760, 770 (2003) (citing 
Kastigar v. United States, 406 U.S. 441, 453 (1972)).
    \67\ See David Geisen, LBP-06-25, 64 NRC 367, 397 n.131 (2006). 
See also, e.g., Steven P. Moffitt, LBP-06-05, 64 NRC 431, 433 n.2 
(2006).
---------------------------------------------------------------------------

    As for the remaining comments, the Commission appreciates the 
commenters' input on its process for issuing and adjudicating 
immediately effective orders, but additional substantive changes to 10 
CFR 2.202(c)(2) or proposals to significantly overhaul its procedures 
for challenging immediately effective orders are beyond the scope of 
this rulemaking. The Commission notes that the commenters are able to 
submit these recommendations as a petition for rulemaking via the 10 
CFR 2.802 petition for rulemaking process. The Commission takes the 
commenters' concerns with fairness in its adjudicatory procedures 
seriously; however, the proposed changes to 10 CFR 2.202 were limited 
to clarifying changes to address specific concerns regarding the 
application of 10 CFR 2.202(c) in certain circumstances. The multiple 
additional procedural changes that the commenters recommend would be 
more appropriately addressed in the context of a comprehensive 
assessment of the NRC's rules of practice and procedure in 10 CFR part 
2, which would ensure compliance with the NRC's obligations under the 
Administrative Procedure Act to allow for notice and comment on 
proposed rules before they are adopted. Adopting the commenters' 
proposed changes in this rulemaking would not allow for sufficient 
notice-and-comment opportunities for other interested parties, and the 
NRC therefore declines to do so.

V. Section-by-Section Analysis

Immediate Effectiveness of Orders Rule Changes

Section 2.202
    The rule makes several changes to 10 CFR 2.202(c)(2)(i). The rule 
revises 10 CFR 2.202(c)(2)(i) by dividing it into several smaller 
paragraphs. The rule revises paragraph 10 CFR 2.202(c)(2)(i) to include 
only the first two sentences of the current 10 CFR 2.202(c)(2)(i), 
which concern the right of the party subject to an immediately 
effective order to challenge the immediate effectiveness of that order. 
The rule further revises the first sentence to add a cross reference to 
10 CFR 2.202(a)(5) and make other minor, clarifying editorial changes 
to that sentence.
    The rule adds a new paragraph 10 CFR 2.202(c)(2)(ii), which allows 
any party to file a motion with the presiding officer requesting that 
the presiding officer order live testimony. Paragraph 10 CFR 
2.202(c)(2)(ii) also authorizes the presiding officer, on its own 
motion, to order live testimony.
    The rule redesignates the third sentence of the current 10 CFR 
2.202(c)(2)(i) as a new paragraph 10 CFR 2.202(c)(2)(iii), which 
authorizes the NRC staff to present its response through live testimony 
rather than a written response in those cases where the presiding 
officer orders live testimony.
    The rule adds a new paragraph 10 CFR 2.202(c)(2)(iv), which 
provides that the presiding officer shall conduct any live testimony 
pursuant to 10 CFR 2.319.
    The rule makes a minor clarifying change to 10 CFR 2.202(c)(2)(ii) 
and redesignates that paragraph as 10 CFR 2.202(c)(2)(v).
    The rule adds a new paragraph 10 CFR 2.202(c)(2)(vi), which 
clarifies that the licensee or other person challenging the immediate 
effectiveness of an order bears the burden of going forward, whereas 
the NRC staff bears the burden of persuasion that adequate evidence 
supports the grounds for the immediately effective order and that 
immediate effectiveness is warranted.
    The rule makes minor clarifying changes to the fourth and fifth 
sentences of 10 CFR 2.202(c)(2)(i), which direct the presiding 
officer's expeditious disposition of the motion to set aside immediate 
effectiveness and prohibit the presiding officer from staying the 
immediate effectiveness of the order, respectively, and redesignates 
those sentences as a new paragraph 10 CFR 2.202(c)(2)(vii).
    The rule makes minor clarifying changes to the eighth sentence of 
10 CFR 2.202(c)(2)(i), and redesignates the sixth, seventh, and eighth 
sentences of 10 CFR 2.202(c)(2)(i) as new paragraph 10 CFR 
2.202(c)(2)(viii). These sentences (1) direct the presiding officer to 
uphold the immediate effectiveness of the order if it finds that there 
is adequate evidence to support immediate effectiveness, (2) address 
the final agency action status of an order upholding immediate 
effectiveness, (3) address the presiding officer's prompt referral of 
an order setting aside immediate effectiveness to the Commission, and 
(4) states that the order setting aside immediate effectiveness will 
not be effective pending further order of the Commission.

Conforming Amendments to 10 CFR 150.2

    This rule revises the last sentence of 10 CFR 150.2 by adding a 
cross reference to 10 CFR 61.9b and replacing the cross reference to 10 
CFR 71.11 with a cross reference to 10 CFR 71.8.

VI. Regulatory Flexibility Certification

    Under the Regulatory Flexibility Act, as amended (5 U.S.C. 605(b)), 
the NRC certifies that this rule does not have a significant economic 
impact on a substantial number of small entities. This final rule 
affects a number of ``small entities'' as defined by the Regulatory 
Flexibility Act or the size standards established by the NRC (10 CFR 
2.810). However, as indicated in Section VII, ``Regulatory Analysis,'' 
these amendments do not have a significant economic impact on the 
affected small entities. The NRC received no comment submissions from 
an identified small entity regarding the impact of the proposed rule on 
small entities.

VII. Regulatory Analysis

    The amendments to the rule governing hearings on challenges to 
immediate effectiveness of orders do not change the existing processes 
but merely clarify the rule. The final rule makes minor, conforming 
amendments to 10 CFR 150.2. These amendments do not result in a cost to 
the NRC or to respondents in hearings on challenges to immediate 
effectiveness of orders, but a benefit accrues to the extent that 
potential confusion over the meaning of the NRC's regulations is 
removed. The NRC believes that this final rule improves the efficiency 
of NRC enforcement proceedings without imposing costs on either the NRC 
or on participants in these proceedings.

VIII. Backfitting and Issue Finality

    The final rule revises the immediate effectiveness provisions at 10 
CFR 2.202 to state that the respondent bears the burden of going 
forward with evidence to challenge immediate effectiveness and the NRC 
staff bears the burden of persuasion on whether adequate evidence 
supports immediate effectiveness. The final rule also revises 10 CFR 
2.202 to clarify that the presiding officer is permitted to order live 
testimony, either by its own motion, or upon the motion of any party to 
the proceeding.
    The revisions to 10 CFR 2.202 clarify the agency's adjudicatory 
procedures with respect to challenges to immediate effectiveness of 
orders. These revisions do not change, modify, or affect the design, 
procedures, or regulatory approvals protected under the various NRC 
backfitting and issue finality provisions. Accordingly, the revisions 
to the adjudicatory procedures do not represent backfitting imposed on 
any

[[Page 63418]]

entity protected by backfitting provisions in 10 CFR parts 50, 70, 72, 
or 76, nor are they inconsistent with any issue finality provision in 
10 CFR part 52.

IX. Cumulative Effects of Regulation

    Cumulative Effects of Regulation do not apply to this final rule 
because it is an administrative rule. The final rule only (1) makes 
amendments to the NRC's regulations regarding challenges to the 
immediate effectiveness of NRC enforcement orders to clarify the burden 
of proof and to clarify the authority of the presiding officer to order 
live testimony in resolving these challenges and (2) makes conforming 
amendments to 10 CFR 150.2.

X. Plain Writing

    The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal 
agencies to write documents in a clear, concise, and well-organized 
manner. The NRC has written this document to be consistent with the 
Plain Writing Act as well as the Presidential Memorandum, ``Plain 
Language in Government Writing,'' published June 10, 1998 (63 FR 
31883).

XI. National Environmental Policy Act

    The NRC has determined that the issuance of this final rule relates 
to enforcement matters and, therefore, falls within the scope of 10 CFR 
51.10(d). In addition, the NRC has determined that the issuance of this 
final rule is the type of action described in categorical exclusions at 
10 CFR 51.22(c)(1)-(2). Therefore, neither an environmental impact 
statement nor an environmental assessment has been prepared for this 
rulemaking.

XII. Paperwork Reduction Act

    This final rule does not contain any new or amended collections of 
information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.). Existing collections of information were approved by the 
Office of Management and Budget (OMB), approval number 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 the document requesting 
or requiring the collection displays a currently valid OMB control 
number.

XIII. Congressional Review Act

    The portion of this action amending 10 CFR 2.202 is a rule as 
defined in the Congressional Review Act (5 U.S.C. 801-808). However, 
OMB has not found it to be a major rule as defined in the Congressional 
Review Act.

XIV. Compatibility of Agreement State Regulations

    Under the ``Policy Statement on Adequacy and Compatibility of 
Agreement State Programs'' approved by the Commission on June 30, 1997, 
and published in the Federal Register (62 FR 46517; September 3, 1997), 
this final rule will be a matter of compatibility between the NRC and 
the Agreement States, thereby providing consistency among the Agreement 
States and the NRC requirements. The NRC staff analyzed the rule in 
accordance with the procedure established within Part III, 
``Categorization Process for NRC Program Elements,'' of Handbook 5.9 to 
Management Directive 5.9, ``Adequacy and Compatibility of Agreement 
State Programs'' (see http://www.nrc.gov/reading-rm/doc-collections/management-directives/).
    The NRC program elements (including regulations) are placed into 
four compatibility categories (See the Compatibility Table in this 
section). In addition, the NRC program elements can also be identified 
as having particular health and safety significance or as being 
reserved solely to the NRC. Compatibility Category A are those program 
elements that are basic radiation protection standards and scientific 
terms and definitions that are necessary to understand radiation 
protection concepts. An Agreement State should adopt Category A program 
elements in an essentially identical manner to provide uniformity in 
the regulation of agreement material on a nationwide basis. 
Compatibility Category B are those program elements that apply to 
activities that have direct and significant effects in multiple 
jurisdictions. An Agreement State should adopt Category B program 
elements in an essentially identical manner. Compatibility Category C 
are those program elements that do not meet the criteria of Category A 
or B, but the essential objectives of which an Agreement State should 
adopt to avoid conflict, duplication, gaps, or other conditions that 
would jeopardize an orderly pattern in the regulation of agreement 
material on a nationwide basis. An Agreement State should adopt the 
essential objectives of the Category C program elements. Compatibility 
Category D are those program elements that do not meet any of the 
criteria of Category A, B, or C, and, therefore, do not need to be 
adopted by Agreement States for purposes of compatibility.
    Health and Safety (H&S) are program elements that are not required 
for compatibility but are identified as having a particular health and 
safety role (i.e., adequacy) in the regulation of agreement material 
within the State. Although not required for compatibility, the State 
should adopt program elements in this H&S category based on those of 
the NRC that embody the essential objectives of the NRC program 
elements because of particular health and safety considerations. 
Compatibility Category NRC are those program elements that address 
areas of regulation that cannot be relinquished to Agreement States 
under the Atomic Energy Act, as amended, or provisions of 10 CFR. These 
program elements are not adopted by Agreement States. The following 
table lists the parts and sections that will be revised and their 
corresponding categorization under the ``Policy Statement on Adequacy 
and Compatibility of Agreement State Programs.'' The Agreement States 
have 3 years from the final rule's effective date, as noted in the 
Federal Register, to adopt compatible regulations.

                                   Table 1--Compatibility Table for Final Rule
----------------------------------------------------------------------------------------------------------------
                                                                                       Compatibility
             Section                    Change              Subject      ---------------------------------------
                                                                               Existing               New
----------------------------------------------------------------------------------------------------------------
                                                     Part 2
----------------------------------------------------------------------------------------------------------------
2.202(c)........................  Revised...........  Orders............  NRC...............  NRC.
----------------------------------------------------------------------------------------------------------------
                                                    Part 150
----------------------------------------------------------------------------------------------------------------
150.2...........................  Revised...........  Scope.............  D.................  D.
----------------------------------------------------------------------------------------------------------------


[[Page 63419]]

XV. Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995, 
Public Law 104-113, requires that Federal agencies use technical 
standards that are developed by voluntary consensus standards bodies 
unless the use of such a standard is inconsistent with applicable law 
or is otherwise impractical. In this rule, the NRC is clarifying two 
aspects of challenges to the immediate effectiveness of NRC enforcement 
orders: (1) The burden of proof and (2) the authority of the presiding 
officer to order live testimony in resolving such a challenge. The NRC 
is also making conforming amendments to 10 CFR 150.2. This action does 
not constitute the establishment of a standard that contains generally 
applicable requirements.

List of Subjects

10 CFR Part 2

    Administrative practice and procedure, Antitrust, Byproduct 
material, Classified information, Confidential business information; 
Freedom of information, Environmental protection, Hazardous waste, 
Nuclear energy, Nuclear materials, Nuclear power plants and reactors, 
Penalties, Reporting and recordkeeping requirements, Sex 
discrimination, Source material, Special nuclear material, Waste 
treatment and disposal.

10 CFR Part 150

    Criminal penalties, Hazardous materials transportation, 
Intergovernmental relations, Nuclear energy, Nuclear materials, 
Penalties, Reporting and recordkeeping requirements, Security measures, 
Source material, Special nuclear material.

    For the reasons set out 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 2 and 150 as follows:

PART 2--AGENCY RULES OF PRACTICE AND PROCEDURE

0
1. The authority citation for part 2 continues to read as follows:

    Authority: Atomic Energy Act of 1954, secs. 29, 53, 62, 63, 81, 
102, 103, 104, 105, 161, 181, 182, 183, 184, 186, 189, 191, 234 (42 
U.S.C. 2039, 2073, 2092, 2093, 2111, 2132, 2133, 2134, 2135, 2201, 
2231, 2232, 2233, 2234, 2236, 2239, 2241, 2282); Energy 
Reorganization Act of 1974, secs. 201, 206 (42 U.S.C. 5841, 5846); 
Nuclear Waste Policy Act of 1982, secs. 114(f), 134, 135, 141 (42 
U.S.C. 10134(f), 10154, 10155, 10161); Administrative Procedure Act 
(5 U.S.C. 552, 553, 554, 557, 558); National Environmental Policy 
Act of 1969 (42 U.S.C. 4332); 44 U.S.C. 3504 note.
    Section 2.205(j) also issued under Sec. 31001(s), Pub. L. 104-
134, 110 Stat. 1321-373 (28 U.S.C. 2461 note).



0
2. In Sec.  2.202, revise paragraph (c)(2) to read as follows:


Sec.  2.202  Orders.

* * * * *
    (c) * * *
    (2)(i) The licensee or other person to whom the Commission has 
issued an immediately effective order in accordance with paragraph 
(a)(5) of this section, may, in addition to demanding a hearing, at the 
time the answer is filed or sooner, file a motion with the presiding 
officer to set aside the immediate effectiveness of the order on the 
ground that the order, including the need for immediate effectiveness, 
is not based on adequate evidence but on mere suspicion, unfounded 
allegations, or error. The motion must state with particularity the 
reasons why the order is not based on adequate evidence and must be 
accompanied by affidavits or other evidence relied on.
    (ii) Any party may file a motion with the presiding officer 
requesting that the presiding officer order live testimony. Any motion 
for live testimony must be made in conjunction with the motion to set 
aside the immediate effectiveness of the order or any party's response 
thereto. The presiding officer may, on its own motion, order live 
testimony. The presiding officer's basis for approving any motion for, 
or ordering on its own motion, live testimony shall be that taking live 
testimony would assist in its decision on the motion to set aside the 
immediate effectiveness of the order.
    (iii) The NRC staff shall respond in writing within 5 days of the 
receipt of either a motion to set aside the immediate effectiveness of 
the order or the presiding officer's order denying a motion for live 
testimony. In cases in which the presiding officer orders live 
testimony, the staff may present its response through live testimony 
rather than a written response.
    (iv) The presiding officer shall conduct any live testimony 
pursuant to its powers in Sec.  2.319 of this part, except that no 
subpoenas, discovery, or referred rulings or certified questions to the 
Commission shall be permitted for this purpose.
    (v) The presiding officer may, on motion by the staff or any other 
party to the proceeding, where good cause exists, delay the hearing on 
the immediately effective order at any time for such periods as are 
consistent with the due process rights of the licensee or other person 
and other affected parties.
    (vi) The licensee or other person challenging the immediate 
effectiveness of an order bears the burden of going forward with 
evidence that the immediately effective order is not based on adequate 
evidence, but on mere suspicion, unfounded allegations, or error. The 
NRC staff bears the burden of persuading the presiding officer that 
adequate evidence supports the grounds for the immediately effective 
order and immediate effectiveness is warranted.
    (vii) The presiding officer shall issue a decision on the motion to 
set aside the immediate effectiveness of the order expeditiously. 
During the pendency of the motion to set aside the immediate 
effectiveness of the order or at any other time, the presiding officer 
may not stay the immediate effectiveness of the order, either on its 
own motion, or upon motion of the licensee or other person.
    (viii) The presiding officer shall uphold the immediate 
effectiveness of the order if it finds that there is adequate evidence 
to support immediate effectiveness. An order upholding immediate 
effectiveness will constitute the final agency action on immediate 
effectiveness. The presiding officer will promptly refer an order 
setting aside immediate effectiveness to the Commission and such order 
setting aside immediate effectiveness will not be effective pending 
further order of the Commission.
* * * * *

PART 150--EXEMPTIONS AND CONTINUED REGULATORY AUTHORITY IN 
AGREEMENT STATES AND IN OFFSHORE WATERS UNDER SECTION 274

0
3. The authority citation for part 150 continues to read as follows:

    Authority: Atomic Energy Act of 1954, secs. 11, 53, 81, 83, 84, 
122, 161, 181, 223, 234, 274 (42 U.S.C. 2014, 2201, 2231, 2273, 
2282, 2021); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 
5841); Nuclear Waste Policy Act of 1982, secs. 135, 141 (42 U.S.C. 
10155, 10161); 44 U.S.C. 3504 note.



0
4. In Sec.  150.2, revise the last sentence to read as follows:


Sec.  150.2  Scope.

    * * * 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

[[Page 63420]]

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. Sec.  30.10, 40.10, 
61.9b, 70.10, and 71.8.

    Dated at Rockville, Maryland, this 13th day of October, 2015.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2015-26590 Filed 10-19-15; 8:45 am]
BILLING CODE 7590-01-P