In the Matter of Joseph S. Shepherd; Order Conditioning Involvement in NRC-Licensed Activities, 666-669 [2013-31545]
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Federal Register / Vol. 79, No. 3 / Monday, January 6, 2014 / Notices
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[FR Doc. 2013–31524 Filed 1–3–14; 8:45 am]
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COMMISSION
[NRC–2013–0282; IA–13–038]
In the Matter of Joseph S. Shepherd;
Order Conditioning Involvement in
NRC-Licensed Activities
I
Joseph S. Shepherd is the President
and Owner of Foss Therapy Services,
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Incorporated (FTS) in North Hollywood,
California. FTS does not possess a
license issued by the Nuclear Regulatory
Commission pursuant to 10 CFR Part 30.
However, FTS is the holder of a State of
California materials license, which
authorizes the use of radioactive
material for the maintenance, repair,
and installation of self-shielded
irradiators. The holder of a State license
may perform work authorized by the
license in other state or federal
jurisdictions provided the State licensee
files for reciprocity with the appropriate
regulatory authority.
On September 8, 2008, the NRC
issued Mr. Shepherd an Order, ‘‘Order
Prohibiting Involvement in 10 CFR Part
71 Activities and Conditioning Other
NRC Licensed Activities’’ (IA–08–014).
The NRC issued the Order to Mr.
Shepherd after he committed multiple
violations of 10 CFR 110.7b, ‘‘Deliberate
Misconduct.’’ These violations arose out
of Mr. Shepherd’s employment by
Source Production and Equipment
Company, Inc. (SPEC), of St. Rose,
Louisiana. SPEC, an NRC licensee, hired
Mr. Shepherd to perform certain
maintenance inspections required by
the NRC Certificate of Compliance for
Model No. 5979 shipping casks prior to
shipping NRC-licensed radioactive
material to Mexico. The NRC
determined through inspection and an
investigation that, on three separate
occasions, Mr. Shepherd deliberately
provided materially inaccurate
information to SPEC concerning the
inspection of Model No. 5979 packages.
Mr. Shepherd provided the inaccurate
information in various documents, such
as checklists and bills of lading. By
deliberately providing materially
inaccurate information, Mr. Shepherd
caused SPEC to violate 10 CFR 71.3,
‘‘Requirement for License’’ and 10 CFR
71.17m ‘‘General License; NRCapproved package.’’ For that reason, Mr.
Shepherd’s actions violated 10 CFR
110.7b, ‘‘Deliberate Misconduct.’’
The September 8, 2008, NRC Order, in
part, prohibited Mr. Shepherd
indefinitely from packaging any Type B
shipments and from preparing any
paperwork for a Type B shipment in any
area of NRC jurisdiction. The Order
required Mr. Shepherd to notify the
NRC in writing at least 5 business days
before conducting licensed activities in
NRC jurisdiction, a condition designed
to facilitate NRC inspection of Mr.
Shepherd’s activities. The Order also
required that, prior to conducting
licensed activities in NRC jurisdiction,
Mr. Shepherd notify the customer, that
the NRC had issued the Order to him
and make the Order available to the
customer. These notifications were
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required for a period of 5 years from the
date of the September 8, 2008, Order;
that is, until September 8, 2013.
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II
In early 2012, the Uniformed Services
University of the Health Sciences (USU)
in Bethesda, Maryland hired FTS to
remove a Mark I Model 68A irradiator
from a facility in North Carolina and
install the irradiator at USU. Although
USU is affiliated with the United States
military services, it is under NRC
jurisdiction. FTS’s contract with USU
originally involved a joint venture with
another company, but FTS became the
sole contractor after the other company
was unable to fulfill the contract. On
April 4, 2012, FTS submitted to the
NRC’s Region IV an NRC Form 241,
‘‘Report of Proposed Activities in NonAgreement States, Areas of Exclusive
Federal Jurisdiction, or Offshore
Waters.’’ With this form, FTS provided
notification of their intent to conduct
work at USU under reciprocity; that is,
under FTS’s California license.
On April 13, 2012, the NRC inspected
FTS’s work on the self-shielded
irradiator at USU. After observing the
activities of the day and watching FTS
finish loading radioactive sources into
USU’s irradiator, an NRC inspector
interviewed Mr. Shepherd regarding the
notification provisions of the 2008
Order issued to him. Mr. Shepherd
acknowledged that he had not notified
USU of the Order and that he had not
made the Order available to USU.
On April 25, 2012, the NRC Office of
Investigations (OI) initiated an
investigation to determine if Mr.
Shepherd willfully failed to adhere to
the conditions of his Order when he
worked at USU without notifying the
USU of the Order issued to him and
without making the Order available to
USU. Based on OI’s investigation, the
NRC finds that Mr. Shepherd willfully
violated the Order, in careless disregard
of its requirements. Specifically, the
NRC finds that Mr. Shepherd willfully
failed to notify USU of the Order issued
to him and willfully failed to make the
Order available to USU prior to
performing work at the facility.
Although Mr. Shepherd has stated that
he believed the Order’s notification
requirements did not apply to his work
at USU because USU was under military
jurisdiction, rather than NRC
jurisdiction, Mr. Shepherd knew that
belief may have been incorrect, yet
failed to verify USU’s jurisdictional
status. For example, Mr. Shepherd
acknowledged that prior to working at
USU he reviewed USU’s NRC license, a
document that states ‘‘U.S. Nuclear
Regulatory Commission Materials
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License’’ at the top of the first page. Mr.
Shepherd also submitted a Form 241 to
the NRC, an action that would not have
been required had USU not been under
NRC jurisdiction.
In a letter dated August 15, 2013, the
NRC informed Mr. Shepherd that the
NRC was considering escalated
enforcement action against him for an
apparent violation of the NRC Order
issued to him on September 8, 2008. In
the letter, the NRC offered Mr. Shepherd
the opportunity to attend a
Predecisional Enforcement Conference
(PEC) or request Alternative Dispute
Resolution (ADR). At Mr. Shepherd’s
request, a PEC was conducted on
September 25, 2013.
During the PEC, Mr. Shepherd
acknowledged the apparent violation
and the failure to provide notification to
USU prior to performing work as
required by the Order, indicating that he
made a mistake. Mr. Shepherd also
acknowledged that he would not have
otherwise notified USU if he had not
discussed the required notification with
the NRC inspector during the inspection
because he thought USU was under
military jurisdiction and not NRC
jurisdiction.
Based on the results of the inspection,
the OI investigation, and the
information provided during the PEC,
the NRC finds that Mr. Shepherd
willfully, in careless disregard, violated
the conditions of the 2008 NRC Order
against him because, prior to conducting
work at the facility, Mr. Shepherd failed
to notify USU of the Order issued to him
and failed to make the Order available
to USU. In sum, the NRC finds that Mr.
Shepherd’s actions constitute a
violation of NRC requirements.
III
The NRC must be able to rely on
licensees, their contractors, and their
employees to comply with NRC
requirements. Mr. Shepherd is currently
prohibited from involvement in 10 CFR
Part 71 activities, as set forth in the
Order issued to him on September 8,
2008. This requirement of the Order
remains in effect. The 2008 Order also
required Mr. Shepherd to notify the
NRC in writing at least 5 business days
before working in NRC jurisdiction, in
order to facilitate NRC inspections of his
activities. In addition, the 2008 Order
required that, before performing work,
Mr. Shepherd notify customers that the
NRC had issued an Order to him and
make the Order available to customers.
Based on Mr. Shepherd’s violation of
the September 8, 2008, NRC Order, I
lack reasonable assurance that Mr.
Shepherd can be relied upon, at this
time, to comply with NRC requirements.
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Based on the current violation, and
because the notification requirements
from the prior Order expired on
September 8, 2013, the public health,
safety, and interest require that the NRC
issue Mr. Shepherd this Order. This
Order requires that, before working in
NRC jurisdiction, Mr. Shepherd (1)
notify the NRC of his planned work and
confirm that he has verified the
jurisdictional status of his customer;
and (2) notify the customer that the NRC
has issued the September 8, 2008, NRC
Order, and this Order to him and make
the Orders available to the customer.
These requirements will remain in effect
for 3 years from the effective date of this
Order. This Order also requires that Mr.
Shepherd must determine whether the
customer is under NRC jurisdiction,
document his determination and state
the basis for his determination. This
requirement will remain in effect for 3
years from the effective date of this
Order. The documentation of this
requirement shall be maintained for a
period of 4 years from the effective date
of the Order.
IV
Accordingly, pursuant to Sections 81,
161b, 161i, 161o, 182, and 186 of the
Atomic Energy Act of 1954, as amended,
and the Commission’s regulations in 10
CFR 2.202, 10 CFR Part 71, 10 CFR
110.7b, and 10 CFR 150.20, it is hereby
ordered that, from the effective date of
this order:
1. For a period of 3 years, Mr.
Shepherd shall notify the NRC in
writing at least 5 business days before
conducting licensed activities in NRC
jurisdiction. Mr. Shepherd may provide
this notification electronically either by
email to: R4_Reciprocity.Resource@
nrc.gov, or by faxing this notification to
(817) 200–1188. Mr. Shepherd may also
provide this notification by mail to
Regional Administrator, U.S. Nuclear
Regulatory Commission, ATTN:
Division of Nuclear Material Safety,
1600 East Lamar Blvd., Arlington, TX
76011. If this notification is provided by
mail, Mr. Shepherd must ensure this
notification is received by the NRC at
least 5 business days before conducting
licensed activities. The notification
shall provide the name, location, and
phone number of the customer; and it
shall describe the type of work to be
performed.
2. For a period of 3 years, Mr.
Shepherd shall take the following
actions before working for any
customer, or for any contractor of a
customer, who manufactures, produces,
transfers, receives, acquires, owns,
possesses, or uses byproduct material.
Mr. Shepherd shall: (a) Determine
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whether the customer or its job site is
under NRC jurisdiction, (b) document
his determination in writing, and (c)
state in writing the basis for his
determination. Mr. Shepherd shall
maintain this documentation for a
period of 4 years from the effective date
of this Order, and he shall make the
documentation available for NRC
inspection.
3. For a period of 3 years, before
conducting licensed activities in NRC
jurisdiction, Mr. Shepherd shall notify
each customer in writing that the NRC
has issued the September 8, 2008, Order
and this Order to him, and he shall
make the Orders available to the
customer. Mr. Shepherd shall maintain
copies of these notifications for 4 years
from the effective date of this Order, and
he shall make the copies available for
NRC inspection.
4. Mr. Shepherd is currently
employed by Foss Therapy Services.
Should Mr. Shepherd seek other
employment involving NRC-regulated
activities within 3 years from the
effective date of this Order, before
accepting employment he shall provide
the employer a copy of both this Order
and the September 8, 2008 Order.
The Director, Office of Enforcement,
may, in writing, relax or rescind any of
the above conditions upon
demonstration by Joseph S. Shepherd of
good cause.
Issuance of this Order does not alter
the provisions in the September 8, 2008,
Order issued to Mr. Shepherd, including
the provision indefinitely prohibiting
Mr. Shepherd’s involvement with
shipments of Type B quantities of NRClicensed material.
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V
In accordance with 2.202, Joseph S.
Shepherd must submit a written answer
to this Order under oath or affirmation
within 20 days of its issuance. The
response shall admit or deny the charge
made in the Order. Joseph S. Shepherd’s
failure to respond to this Order could
result in additional enforcement action
in accordance with the Commission’s
Enforcement Policy. Any person
adversely affected by this Order may
submit a written answer to this Order
within 20 days of its issuance. In
addition, Joseph S. Shepherd and any
other person adversely affected by this
Order may request a hearing on this
Order within 30 days of its issuance.
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
made in writing to the Director, Office
of Enforcement, U.S. Nuclear Regulatory
Commission, Washington, DC 20555–
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17:08 Jan 03, 2014
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0001, and include a statement of good
cause for the extension.
The response to this Order and the
Notice shall be submitted to the
Secretary, U.S. Nuclear Regulatory
Commission, ATTN: Rulemakings and
Adjudications Staff, Washington, DC
20555–0001. Copies shall also be sent
to: Director, Office of Enforcement, U.S.
Nuclear Regulatory Commission,
Washington, DC 20555–0001; the
Assistant General Counsel for Materials
Litigation and Enforcement at the same
address; Regional Administrator, U.S.
Nuclear Regulatory Commission, ATTN:
Regional Administrator, Region I, 2100
Renaissance Blvd., King of Prussia, PA
19406. This response should be clearly
marked as a ‘‘Reply to a Notice of
Violation and Order; IA–13–038.’’
All documents filed in NRC
adjudicatory proceedings, including a
request for hearing, a petition for leave
to intervene, any motion or other
document filed in the proceeding prior
to the submission of a request for
hearing or petition to intervene, and
documents filed by interested
governmental entities participating
under 10 CFR 2.315(c), must be filed in
accordance with the NRC E-Filing rule
(72 FR 49139, August 28, 2007). The EFiling process requires participants to
submit and serve all adjudicatory
documents over the internet, or in some
cases to mail copies on electronic
storage media. Participants may not
submit paper copies of their filings
unless they seek an exemption in
accordance with the procedures
described below.
To comply with the procedural
requirements of E-Filing, at least ten 10
days prior to the filing deadline, the
participant should contact the Office of
the Secretary by email at
hearing.docket@nrc.gov, 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 NRCissued digital ID certificate). Based upon
this information, the Secretary will
establish an electronic docket for the
hearing in this proceeding if the
Secretary has not already established an
electronic docket.
Information about applying for a
digital ID certificate is available on the
NRC’s public Web site at https://
www.nrc.gov/site-help/
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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 https://
www.nrc.gov/site-help/esubmittals.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 Webbased submission form, including the
installation of the Web browser plug-in,
is available on the NRC’s public Web
site at https://www.nrc.gov/site-help/
e-submittals.html.
Once a participant has obtained a
digital ID certificate and a docket has
been created, the participant can then
submit a request for hearing or petition
for leave to intervene. Submissions
should be in Portable Document Format
(PDF) in accordance with NRC guidance
available on the NRC’s public Web site
at https://www.nrc.gov/site-help/esubmittals.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 documents 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 NRC’s adjudicatory E-Filing system
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may seek assistance by contacting the
NRC Meta System Help Desk through
the ‘‘Contact Us’’ link located on the
NRC’s public Web site at https://
www.nrc.gov/site-help/esubmittals.html, by email to
MSHD.Resource@nrc.gov, or by a tollfree call at 866–672–7640. The NRC
Meta System Help Desk is available
between 8 a.m. and 8 p.m., Eastern
Time, Monday through Friday,
excluding government holidays.
Participants who believe that they
have a good cause for not submitting
documents electronically must file an
exemption request, in accordance with
10 CFR 2.302(g), with their initial paper
filing requesting authorization to
continue to submit documents in paper
format. Such filings must be submitted
by: (1) First class mail addressed to the
Office of the Secretary of the
Commission, U.S. Nuclear Regulatory
Commission, Washington, DC 20555–
0001, Attention: Rulemaking and
Adjudications Staff; or (2) courier,
express mail, or expedited delivery
service to the Office of the Secretary,
Sixteenth Floor, One White Flint North,
11555 Rockville Pike, Rockville,
Maryland 20852, Attention: Rulemaking
and Adjudications Staff. Participants
filing a document in this manner are
responsible for serving the document on
all other participants. Filing is
considered complete by first-class mail
as of the time of deposit in the mail, or
by courier, express mail, or expedited
delivery service upon depositing the
document with the provider of the
service. A presiding officer, having
granted an exemption request from
using E-Filing, may require a participant
or party to use E-Filing if the presiding
officer subsequently determines that the
reason for granting the exemption from
use of E-Filing no longer exists.
Documents submitted in adjudicatory
proceedings will appear in the NRC’s
electronic hearing docket which is
available to the public at https://
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. However, a request to
intervene will require including
information on local residence in order
to demonstrate a proximity assertion of
interest in the proceeding. With respect
to copyrighted works, except for limited
excerpts that serve the purpose of the
adjudicatory filings and would
constitute a Fair Use application,
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17:08 Jan 03, 2014
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participants are requested not to include
copyrighted materials in their
submission.
If a person other than Joseph S.
Shepherd requests a hearing, that
person shall set forth with particularity
the manner in which his interest is
adversely affected by this Order and
shall address the criteria set forth in 10
CFR 2.309(d) and (f).
If a hearing is requested by Joseph S.
Shepherd 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 issued 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.
An answer or a request for hearing
shall not stay the immediate
effectiveness of this order.
Dated at Rockville, Maryland, this 20 day
of December 2013.
For the Nuclear Regulatory Commission.
Roy P. Zimmerman,
Director, Office of Enforcement.
[FR Doc. 2013–31545 Filed 1–3–14; 8:45 am]
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POSTAL REGULATORY COMMISSION
[Docket No. ACR2013; Order No. 1935]
FY 2012 Annual Compliance Report
Postal Regulatory Commission.
Notice.
AGENCY:
ACTION:
SUMMARY: The Postal Service has filed
an Annual Compliance Report on the
costs, revenues, rates, and quality of
service associated with its products in
fiscal year 2013. Within 90 days, the
Commission must evaluate that
information and issue its determination
as to whether rates were in compliance
with title 39, chapter 36 and whether
service standards in effect were met. To
assist in this, the Commission seeks
public comments on the Postal Service’s
Annual Compliance Report.
DATES: Comments are due: January 31,
2014.
Reply Comments are due: February
14, 2014.
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669
Submit comments
electronically via the Commission’s
Filing Online system at https://
www.prc.gov. Those who cannot submit
comments electronically should contact
the person identified in the FOR FURTHER
INFORMATION CONTACT section by
telephone for advice on filing
alternatives.
FOR FURTHER INFORMATION CONTACT:
Stephen L. Sharfman, General Counsel,
at 202–789–6820.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
Table of Contents
I. Introduction
II. Overview of the Postal Service’s FY 2013
ACR
III. Procedural Steps
IV. Ordering Paragraphs
I. Introduction
On December 27, 2013, the United
States Postal Service (Postal Service)
filed with the Commission, pursuant to
39 U.S.C. 3652, its Annual Compliance
Report (ACR) for fiscal year (FY) 2013.1
Section 3652 requires submission of
data and information on the costs,
revenues, rates, and quality of service
associated with postal products within
90 days of the closing of each fiscal
year. In conformance with other
statutory provisions and Commission
rules, the ACR includes the Postal
Service’s FY 2013 Comprehensive
Statement, its FY 2013 annual report to
the Secretary of the Treasury on the
Competitive Products Fund, and certain
related Competitive Products Fund
material. See respectively, 39 U.S.C.
3652(g), 39 U.S.C. 2011(i), and 39 CFR
3060.20–23. In line with past practice,
some of the material in the FY 2013
ACR appears in non-public annexes.
The filing begins a review process that
results in an Annual Compliance
Determination (ACD) issued by the
Commission to determine whether
Postal Service products offered during
FY 2013 are in compliance with
applicable title 39 requirements.
II. Overview of the Postal Service’s FY
2013 ACR
Contents of the filing. The Postal
Service’s FY 2013 ACR consists of a 56page narrative; extensive additional
material appended as separate folders
and identified in Attachment One; and
an application for non-public treatment
of certain materials, along with
supporting rationale, filed as
Attachment Two. The filing also
1 United States Postal Service FY 2013 Annual
Compliance Report, December 27, 2013 (FY 2013
ACR). Public portions of the Postal Service’s filing
are available on the Commission’s Web site at
https://www.prc.gov.
E:\FR\FM\06JAN1.SGM
06JAN1
Agencies
[Federal Register Volume 79, Number 3 (Monday, January 6, 2014)]
[Notices]
[Pages 666-669]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-31545]
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NUCLEAR REGULATORY COMMISSION
[NRC-2013-0282; IA-13-038]
In the Matter of Joseph S. Shepherd; Order Conditioning
Involvement in NRC-Licensed Activities
I
Joseph S. Shepherd is the President and Owner of Foss Therapy
Services, Incorporated (FTS) in North Hollywood, California. FTS does
not possess a license issued by the Nuclear Regulatory Commission
pursuant to 10 CFR Part 30. However, FTS is the holder of a State of
California materials license, which authorizes the use of radioactive
material for the maintenance, repair, and installation of self-shielded
irradiators. The holder of a State license may perform work authorized
by the license in other state or federal jurisdictions provided the
State licensee files for reciprocity with the appropriate regulatory
authority.
On September 8, 2008, the NRC issued Mr. Shepherd an Order, ``Order
Prohibiting Involvement in 10 CFR Part 71 Activities and Conditioning
Other NRC Licensed Activities'' (IA-08-014). The NRC issued the Order
to Mr. Shepherd after he committed multiple violations of 10 CFR
110.7b, ``Deliberate Misconduct.'' These violations arose out of Mr.
Shepherd's employment by Source Production and Equipment Company, Inc.
(SPEC), of St. Rose, Louisiana. SPEC, an NRC licensee, hired Mr.
Shepherd to perform certain maintenance inspections required by the NRC
Certificate of Compliance for Model No. 5979 shipping casks prior to
shipping NRC-licensed radioactive material to Mexico. The NRC
determined through inspection and an investigation that, on three
separate occasions, Mr. Shepherd deliberately provided materially
inaccurate information to SPEC concerning the inspection of Model No.
5979 packages. Mr. Shepherd provided the inaccurate information in
various documents, such as checklists and bills of lading. By
deliberately providing materially inaccurate information, Mr. Shepherd
caused SPEC to violate 10 CFR 71.3, ``Requirement for License'' and 10
CFR 71.17m ``General License; NRC-approved package.'' For that reason,
Mr. Shepherd's actions violated 10 CFR 110.7b, ``Deliberate
Misconduct.''
The September 8, 2008, NRC Order, in part, prohibited Mr. Shepherd
indefinitely from packaging any Type B shipments and from preparing any
paperwork for a Type B shipment in any area of NRC jurisdiction. The
Order required Mr. Shepherd to notify the NRC in writing at least 5
business days before conducting licensed activities in NRC
jurisdiction, a condition designed to facilitate NRC inspection of Mr.
Shepherd's activities. The Order also required that, prior to
conducting licensed activities in NRC jurisdiction, Mr. Shepherd notify
the customer, that the NRC had issued the Order to him and make the
Order available to the customer. These notifications were
[[Page 667]]
required for a period of 5 years from the date of the September 8,
2008, Order; that is, until September 8, 2013.
II
In early 2012, the Uniformed Services University of the Health
Sciences (USU) in Bethesda, Maryland hired FTS to remove a Mark I Model
68A irradiator from a facility in North Carolina and install the
irradiator at USU. Although USU is affiliated with the United States
military services, it is under NRC jurisdiction. FTS's contract with
USU originally involved a joint venture with another company, but FTS
became the sole contractor after the other company was unable to
fulfill the contract. On April 4, 2012, FTS submitted to the NRC's
Region IV an NRC Form 241, ``Report of Proposed Activities in Non-
Agreement States, Areas of Exclusive Federal Jurisdiction, or Offshore
Waters.'' With this form, FTS provided notification of their intent to
conduct work at USU under reciprocity; that is, under FTS's California
license.
On April 13, 2012, the NRC inspected FTS's work on the self-
shielded irradiator at USU. After observing the activities of the day
and watching FTS finish loading radioactive sources into USU's
irradiator, an NRC inspector interviewed Mr. Shepherd regarding the
notification provisions of the 2008 Order issued to him. Mr. Shepherd
acknowledged that he had not notified USU of the Order and that he had
not made the Order available to USU.
On April 25, 2012, the NRC Office of Investigations (OI) initiated
an investigation to determine if Mr. Shepherd willfully failed to
adhere to the conditions of his Order when he worked at USU without
notifying the USU of the Order issued to him and without making the
Order available to USU. Based on OI's investigation, the NRC finds that
Mr. Shepherd willfully violated the Order, in careless disregard of its
requirements. Specifically, the NRC finds that Mr. Shepherd willfully
failed to notify USU of the Order issued to him and willfully failed to
make the Order available to USU prior to performing work at the
facility. Although Mr. Shepherd has stated that he believed the Order's
notification requirements did not apply to his work at USU because USU
was under military jurisdiction, rather than NRC jurisdiction, Mr.
Shepherd knew that belief may have been incorrect, yet failed to verify
USU's jurisdictional status. For example, Mr. Shepherd acknowledged
that prior to working at USU he reviewed USU's NRC license, a document
that states ``U.S. Nuclear Regulatory Commission Materials License'' at
the top of the first page. Mr. Shepherd also submitted a Form 241 to
the NRC, an action that would not have been required had USU not been
under NRC jurisdiction.
In a letter dated August 15, 2013, the NRC informed Mr. Shepherd
that the NRC was considering escalated enforcement action against him
for an apparent violation of the NRC Order issued to him on September
8, 2008. In the letter, the NRC offered Mr. Shepherd the opportunity to
attend a Predecisional Enforcement Conference (PEC) or request
Alternative Dispute Resolution (ADR). At Mr. Shepherd's request, a PEC
was conducted on September 25, 2013.
During the PEC, Mr. Shepherd acknowledged the apparent violation
and the failure to provide notification to USU prior to performing work
as required by the Order, indicating that he made a mistake. Mr.
Shepherd also acknowledged that he would not have otherwise notified
USU if he had not discussed the required notification with the NRC
inspector during the inspection because he thought USU was under
military jurisdiction and not NRC jurisdiction.
Based on the results of the inspection, the OI investigation, and
the information provided during the PEC, the NRC finds that Mr.
Shepherd willfully, in careless disregard, violated the conditions of
the 2008 NRC Order against him because, prior to conducting work at the
facility, Mr. Shepherd failed to notify USU of the Order issued to him
and failed to make the Order available to USU. In sum, the NRC finds
that Mr. Shepherd's actions constitute a violation of NRC requirements.
III
The NRC must be able to rely on licensees, their contractors, and
their employees to comply with NRC requirements. Mr. Shepherd is
currently prohibited from involvement in 10 CFR Part 71 activities, as
set forth in the Order issued to him on September 8, 2008. This
requirement of the Order remains in effect. The 2008 Order also
required Mr. Shepherd to notify the NRC in writing at least 5 business
days before working in NRC jurisdiction, in order to facilitate NRC
inspections of his activities. In addition, the 2008 Order required
that, before performing work, Mr. Shepherd notify customers that the
NRC had issued an Order to him and make the Order available to
customers.
Based on Mr. Shepherd's violation of the September 8, 2008, NRC
Order, I lack reasonable assurance that Mr. Shepherd can be relied
upon, at this time, to comply with NRC requirements. Based on the
current violation, and because the notification requirements from the
prior Order expired on September 8, 2013, the public health, safety,
and interest require that the NRC issue Mr. Shepherd this Order. This
Order requires that, before working in NRC jurisdiction, Mr. Shepherd
(1) notify the NRC of his planned work and confirm that he has verified
the jurisdictional status of his customer; and (2) notify the customer
that the NRC has issued the September 8, 2008, NRC Order, and this
Order to him and make the Orders available to the customer. These
requirements will remain in effect for 3 years from the effective date
of this Order. This Order also requires that Mr. Shepherd must
determine whether the customer is under NRC jurisdiction, document his
determination and state the basis for his determination. This
requirement will remain in effect for 3 years from the effective date
of this Order. The documentation of this requirement shall be
maintained for a period of 4 years from the effective date of the
Order.
IV
Accordingly, pursuant to Sections 81, 161b, 161i, 161o, 182, and
186 of the Atomic Energy Act of 1954, as amended, and the Commission's
regulations in 10 CFR 2.202, 10 CFR Part 71, 10 CFR 110.7b, and 10 CFR
150.20, it is hereby ordered that, from the effective date of this
order:
1. For a period of 3 years, Mr. Shepherd shall notify the NRC in
writing at least 5 business days before conducting licensed activities
in NRC jurisdiction. Mr. Shepherd may provide this notification
electronically either by email to: R4_Reciprocity.Resource@nrc.gov, or
by faxing this notification to (817) 200-1188. Mr. Shepherd may also
provide this notification by mail to Regional Administrator, U.S.
Nuclear Regulatory Commission, ATTN: Division of Nuclear Material
Safety, 1600 East Lamar Blvd., Arlington, TX 76011. If this
notification is provided by mail, Mr. Shepherd must ensure this
notification is received by the NRC at least 5 business days before
conducting licensed activities. The notification shall provide the
name, location, and phone number of the customer; and it shall describe
the type of work to be performed.
2. For a period of 3 years, Mr. Shepherd shall take the following
actions before working for any customer, or for any contractor of a
customer, who manufactures, produces, transfers, receives, acquires,
owns, possesses, or uses byproduct material. Mr. Shepherd shall: (a)
Determine
[[Page 668]]
whether the customer or its job site is under NRC jurisdiction, (b)
document his determination in writing, and (c) state in writing the
basis for his determination. Mr. Shepherd shall maintain this
documentation for a period of 4 years from the effective date of this
Order, and he shall make the documentation available for NRC
inspection.
3. For a period of 3 years, before conducting licensed activities
in NRC jurisdiction, Mr. Shepherd shall notify each customer in writing
that the NRC has issued the September 8, 2008, Order and this Order to
him, and he shall make the Orders available to the customer. Mr.
Shepherd shall maintain copies of these notifications for 4 years from
the effective date of this Order, and he shall make the copies
available for NRC inspection.
4. Mr. Shepherd is currently employed by Foss Therapy Services.
Should Mr. Shepherd seek other employment involving NRC-regulated
activities within 3 years from the effective date of this Order, before
accepting employment he shall provide the employer a copy of both this
Order and the September 8, 2008 Order.
The Director, Office of Enforcement, may, in writing, relax or
rescind any of the above conditions upon demonstration by Joseph S.
Shepherd of good cause.
Issuance of this Order does not alter the provisions in the
September 8, 2008, Order issued to Mr. Shepherd, including the
provision indefinitely prohibiting Mr. Shepherd's involvement with
shipments of Type B quantities of NRC-licensed material.
V
In accordance with 2.202, Joseph S. Shepherd must submit a written
answer to this Order under oath or affirmation within 20 days of its
issuance. The response shall admit or deny the charge made in the
Order. Joseph S. Shepherd's failure to respond to this Order could
result in additional enforcement action in accordance with the
Commission's Enforcement Policy. Any person adversely affected by this
Order may submit a written answer to this Order within 20 days of its
issuance. In addition, Joseph S. Shepherd and any other person
adversely affected by this Order may request a hearing on this Order
within 30 days of its issuance. 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 made in writing to
the Director, Office of Enforcement, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, and include a statement of good
cause for the extension.
The response to this Order and the Notice shall be submitted to the
Secretary, U.S. Nuclear Regulatory Commission, ATTN: Rulemakings and
Adjudications Staff, Washington, DC 20555-0001. Copies shall also be
sent to: Director, Office of Enforcement, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001; the Assistant General Counsel
for Materials Litigation and Enforcement at the same address; Regional
Administrator, U.S. Nuclear Regulatory Commission, ATTN: Regional
Administrator, Region I, 2100 Renaissance Blvd., King of Prussia, PA
19406. This response should be clearly marked as a ``Reply to a Notice
of Violation and Order; IA-13-038.''
All documents filed in NRC adjudicatory proceedings, including a
request for hearing, a petition for leave to intervene, any motion or
other document filed in the proceeding prior to the submission of a
request for hearing or petition to intervene, and documents filed by
interested governmental entities participating under 10 CFR 2.315(c),
must be filed in accordance with the NRC E-Filing rule (72 FR 49139,
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
submit paper copies of their filings unless they seek an exemption in
accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least
ten 10 days prior to the filing deadline, the participant should
contact the Office of the Secretary by email at hearing.docket@nrc.gov,
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 ID certificate). Based upon this information, the
Secretary will establish an electronic docket for the hearing in this
proceeding if the Secretary has not already established an electronic
docket.
Information about applying for a digital ID certificate is
available on the NRC's public Web site at https://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 https://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 https://www.nrc.gov/site-help/e-submittals.html.
Once a participant has obtained a digital ID certificate and a
docket has been created, the participant can then submit a request for
hearing or petition for leave to intervene. Submissions should be in
Portable Document Format (PDF) in accordance with NRC guidance
available on the NRC's public Web site at https://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
documents 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 NRC's adjudicatory E-
Filing system
[[Page 669]]
may seek assistance by contacting the NRC Meta System Help Desk through
the ``Contact Us'' link located on the NRC's public Web site at https://www.nrc.gov/site-help/e-submittals.html, by email to
MSHD.Resource@nrc.gov, or by a toll-free call at 866-672-7640. The NRC
Meta System Help Desk is available between 8 a.m. and 8 p.m., Eastern
Time, Monday through Friday, excluding government holidays.
Participants who believe that they have a good cause for not
submitting documents electronically must file an exemption request, in
accordance with 10 CFR 2.302(g), with their initial paper filing
requesting authorization to continue to submit documents in paper
format. Such filings must be submitted by: (1) First class mail
addressed to the Office of the Secretary of the Commission, U.S.
Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention:
Rulemaking and Adjudications Staff; or (2) courier, express mail, or
expedited delivery service to the Office of the Secretary, Sixteenth
Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland
20852, Attention: Rulemaking and Adjudications Staff. Participants
filing a document in this manner are responsible for serving the
document on all other participants. Filing is considered complete by
first-class mail as of the time of deposit in the mail, or by courier,
express mail, or expedited delivery service upon depositing the
document with the provider of the service. A presiding officer, having
granted an exemption request from using E-Filing, may require a
participant or party to use E-Filing if the presiding officer
subsequently determines that the reason for granting the exemption from
use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the
NRC's electronic hearing docket which is available to the public at
https://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.
However, a request to intervene will require including information on
local residence in order to demonstrate a proximity assertion of
interest in the proceeding. With respect to copyrighted works, except
for limited excerpts that serve the purpose of the adjudicatory filings
and would constitute a Fair Use application, participants are requested
not to include copyrighted materials in their submission.
If a person other than Joseph S. Shepherd requests a hearing, that
person shall set forth with particularity the manner in which his
interest is adversely affected by this Order and shall address the
criteria set forth in 10 CFR 2.309(d) and (f).
If a hearing is requested by Joseph S. Shepherd 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 issued 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.
An answer or a request for hearing shall not stay the immediate
effectiveness of this order.
Dated at Rockville, Maryland, this 20 day of December 2013.
For the Nuclear Regulatory Commission.
Roy P. Zimmerman,
Director, Office of Enforcement.
[FR Doc. 2013-31545 Filed 1-3-14; 8:45 am]
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