Deliberate Misconduct Rule and Hearings on Challenges to the Immediate Effectiveness of Orders, 8097-8112 [2014-02570]

Download as PDF 8097 Proposed Rules Federal Register Vol. 79, No. 28 Tuesday, February 11, 2014 This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. NUCLEAR REGULATORY COMMISSION 10 CFR Parts 2, 30, 40, 50, 52, 60, 61, 63, 70, 71, 72, 76, 110, and 150 [NRC–2013–0132] RIN 3150–AJ27 Deliberate Misconduct Rule and Hearings on Challenges to the Immediate Effectiveness of Orders Nuclear Regulatory Commission. ACTION: Proposed rule. AGENCY: The U.S. Nuclear Regulatory Commission (NRC) is proposing to amend its regulations concerning deliberate misconduct by licensees and other persons otherwise subject to the NRC’s jurisdiction (known as the ‘‘Deliberate Misconduct Rule’’) and its regulations concerning challenges to immediately effective orders issued by the NRC. This proposed rule would incorporate the concept of ‘‘deliberate ignorance’’ as an additional basis on which to take enforcement action against persons who violate any of the NRC’s Deliberate Misconduct Rule provisions. The NRC is also proposing to amend its regulations regarding challenges to the immediate effectiveness of NRC enforcement orders to clarify that the NRC staff has the burden of persuasion in showing that adequate evidence supports the grounds for the order and that immediate effectiveness is warranted and to clarify the authority of the NRC’s presiding officer to order live testimony in resolving these challenges. DATES: Submit comments by May 12, 2014. Comments received after this date will be considered if it is practical to do so. However, the NRC is able to ensure consideration only of comments received on or before this date. ADDRESSES: You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject): ehiers on DSK2VPTVN1PROD with PROPOSALS-1 SUMMARY: VerDate Mar<15>2010 14:38 Feb 10, 2014 Jkt 232001 • Federal rulemaking Web site: Go to https://www.regulations.gov and search for Docket ID NRC–2013–0132. Address questions about NRC dockets to Carol Gallagher; telephone: 301–287–3422; email: Carol.Gallagher@nrc.gov. For technical questions contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this proposed rule. • Email comments to: Rulemaking.Comments@nrc.gov. If you do not receive an automatic email reply confirming receipt, then contact us at 301–415–1677. • Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 301– 415–1101. • Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, ATTN: Rulemakings and Adjudications Staff. • Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. (Eastern Time) Federal workdays; telephone: 301–415–1677. For additional direction on accessing information and submitting comments, see ‘‘Accessing Information and Submitting Comments’’ in the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Andrew Pessin, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555– 0001, telephone: 301–415–1062, email: Andrew.Pessin@nrc.gov. SUPPLEMENTARY INFORMATION: I. Accessing Information and Submitting Comments A. Accessing Information Please refer to Docket ID NRC–2013– 0132 when contacting the NRC about the availability of information for this proposed rule. You may access publicly available information related to this proposed rule by any of the following methods: • Federal Rulemaking Web site: Go to https://www.regulations.gov and search for Docket ID NRC–2013–0132. • NRC’s Agencywide Documents Access and Management System (ADAMS): You may access publicly available documents online in the NRC Library at https://www.nrc.gov/readingrm/adams.html. To begin the search, select ‘‘ADAMS Public Documents’’ and then select ‘‘Begin Web-based ADAMS PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 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 pdr.resource@nrc.gov. The ADAMS accession number for each document referenced in this document (if that document is available in ADAMS) is provided the first time that a document is referenced. • NRC’s Public Document Room: You may examine and purchase copies of public documents at the NRC’s PDR, Room O1–F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. B. Submitting Comments Please include Docket ID NRC–2013– 0132 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket. The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https:// www.regulations.gov as well as enter the comment submissions into ADAMS, and the NRC does not routinely edit comment submissions to remove identifying or contact information. If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS. II. Background The NRC promulgated the Deliberate Misconduct Rule on August 15, 1991.1 The Deliberate Misconduct Rule appears in several sections of Title 10 of the Code of Federal Regulations (10 CFR).2 As explained in the statement of 1 56 FR 40664. Deliberate Misconduct Rule appears in 10 CFR 30.10, 40.10, 50.5, 52.4, 60.11, 61.9b, 63.11, 70.10, 71.8, 72.12, 76.10, and 110.7b. 2 The E:\FR\FM\11FEP1.SGM 11FEP1 8098 Federal Register / Vol. 79, No. 28 / Tuesday, February 11, 2014 / Proposed Rules ehiers on DSK2VPTVN1PROD with PROPOSALS-1 considerations 3 for the 1991 rulemaking, the purpose of the Deliberate Misconduct Rule was to put both licensed and unlicensed persons on notice that they may be subject to enforcement action for deliberate misconduct that ‘‘causes or, but for detection, would have caused, a [NRC] licensee to be in violation of any rule, regulation, or order, or any term, condition, or limitation of any license, issued by the Commission.’’ 4 In this regard, the Deliberate Misconduct Rule also included ‘‘individual liability for deliberate submission of incomplete or inaccurate information to the NRC, a licensee, contractor, or subcontractor.’’ 5 Therefore, the Deliberate Misconduct Rule expressly extended the NRC’s civil penalty enforcement authority (10 CFR Part 2, Subpart B) to those individuals who, although unlicensed by the NRC, are employed by an NRC licensee, or are employed by a contractor or subcontractor of an NRC licensee or who otherwise ‘‘knowingly provide goods or services that relate to a licensee’s activities subject to NRC regulation.’’ 6 This proposed rule would amend the Deliberate Misconduct Rule to address an issue that arose during parallel NRC civil and U.S. Department of Justice (DOJ) criminal proceedings involving the same individual and the same set of facts. Specifically, the proposed rule would amend the Deliberate Misconduct Rule to incorporate the concept of ‘‘deliberate ignorance’’ as an additional basis on which to take enforcement action against persons who violate the Deliberate Misconduct Rule. Under federal criminal law, an individual acts with ‘‘deliberate ignorance’’ when that individual attempts to avoid criminal prosecution and conviction by deliberately remaining ignorant of critical facts, which if clearly known by that individual, would provide a basis to criminally prosecute that individual or otherwise subject the individual to an agency civil penalty enforcement proceeding.7 3 The term ‘‘statement of considerations’’ refers to the section of the Federal Register notice of a proposed rule or final rule that sets forth the NRC’s rationale and justification for the rule. 4 56 FR 40665 (alteration added). 5 Id. 6 56 FR 40679. 7 Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 2068–69 (2011) (stating that defendants cannot avoid criminal liability by ‘‘deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances’’); Id. at 2069 citing United States v. Jewell, 532 F.2d 697, 700 (9th Cir. 1976) (en banc) (‘‘[i]t is also said that persons who know enough to blind themselves to direct proof of critical facts in VerDate Mar<15>2010 14:38 Feb 10, 2014 Jkt 232001 In addition, this proposed rule would amend 10 CFR 2.202, the NRC’s regulation governing issuance of orders, including those orders made immediately effective. Presently, 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 proposed rule would amend the regulations governing challenges to the immediate effectiveness of an order by clarifying: (1) Which party bears the burden of proof required 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. Geisen Proceeding The deficiencies in the Deliberate Misconduct Rule became apparent with the parallel NRC enforcement proceeding and the DOJ criminal prosecution of David Geisen. On January 4, 2006, the NRC issued an immediately effective order to Mr. Geisen, a former employee at the DavisBesse Nuclear Power Station, barring him from employment in the nuclear industry for 5 years.8 The order 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 DOJ later obtained a grand jury indictment against Mr. Geisen on charges under 10 U.S.C. 1001 of submitting false statements to the NRC.9 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. Mr. Geisen was convicted on a general verdict; that is, the jury found Mr. Geisen guilty without making findings in regard to either of the prosecution’s theories (i.e., whether Mr. Geisen knew that the statements were false or whether he acted with deliberate effect have actual knowledge of those facts’’); United States v. Gullet, 713 F.2d 1203, 1212 (6th Cir. 1983) (stating that deliberate ignorance applies when a criminal defendant ‘‘deliberately clos[es] his eyes to the obvious risk that he is engaging in unlawful conduct’’) (alteration added). 8 David Geisen, LBP–09–24, 70 NRC 676 (2009), aff’d, CLI–10–23, 72 NRC 210 (2010). 9 United States v. Geisen, 2008 WL 6124567 (N.D. Ohio May 2, 2008). PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 ignorance). The United States Court of Appeals for the Sixth Circuit upheld Mr. Geisen’s conviction on appeal.10 Because the Geisen jury issued a general verdict, it is unknown under which of the alternative theories the jury convicted him. In the parallel NRC enforcement proceeding, Mr. Geisen’s criminal conviction prompted the NRC’s Atomic Safety and Licensing Board (the ASLB or the Board) to consider whether Mr. Geisen was collaterally estopped 11 from denying the same wrongdoing in the NRC proceeding.12 A Board majority declined to apply collateral estoppel in the NRC proceeding due to uncertainty over whether the general jury verdict in the criminal proceeding was based on ‘‘actual knowledge’’ or ‘‘deliberate ignorance.’’ 13 In this regard, both the Board and the Commission, on appeal, found that the NRC’s Deliberate Misconduct Rule did not include deliberate ignorance.14 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 NRC could apply its identical actual knowledge standard based on the same facts in the criminal case.15 Conversely, if the verdict was based on deliberate ignorance, the NRC could not apply a deliberate ignorance standard because the NRC did not have such a standard to apply. Therefore, the Commission determined that the potential that the jury convicted on a deliberate ignorance standard for which the NRC had no 10 United States v. Geisen, 612 F.3d 471, 485–86 (6th Cir. 2010), cert. denied, 131 S. Ct. 1813 (2011). 11 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 quasijudicial 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). 12 Geisen, LBP–09–24, 70 NRC at 709–26. 13 Id. at 715–26. 14 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.’’ Id. 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). 15 Geisen, CLI–10–23, 72 NRC at 249. E:\FR\FM\11FEP1.SGM 11FEP1 Federal Register / Vol. 79, No. 28 / Tuesday, February 11, 2014 / Proposed Rules corresponding standard to apply prohibited the NRC from applying collateral estoppel in its enforcement proceeding against Mr. Geisen. The NRC enforcement proceeding ended in Mr. Geisen’s favor, creating an anomaly: Mr. Geisen was convicted in federal court under a ‘‘beyond a reasonable doubt’’ criminal standard but exonerated before the NRC on a less demanding ‘‘preponderance of the evidence’’ standard. The Commission’s Geisen decision made clear that the Deliberate Misconduct Rule, as presently written, does not provide for an enforcement action on the basis of deliberate ignorance. ehiers on DSK2VPTVN1PROD with PROPOSALS-1 Post-Geisen Proceeding Developments In Staff Requirements MemorandaSECY–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) 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 previously described review. In response, in 2012, the Commission directed OGC to develop a proposed rule that would incorporate the federal standard of ‘‘deliberate ignorance’’ 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 NRC is proposing this rule so that NRC enforcement proceedings and DOJ criminal prosecutions that involve similar violations are carried out in a consistent manner. The proposed rule would incorporate the concept of ‘‘deliberate ignorance’’ into the Deliberate Misconduct Rule. The NRC is also proposing this rule to clarify two aspects of the NRC’s regulations regarding challenges to the immediate effectiveness of orders: (1) The burden of proof and (2) the authority of the presiding officer to order live testimony in resolving such a challenge. The burden of proof has been defined as meaning the burden of persuasion, which is the need to establish the validity of a claim or overcome VerDate Mar<15>2010 14:38 Feb 10, 2014 Jkt 232001 opposing evidence.16 A related concept, sometimes included within the burden of proof, is the burden of going forward with evidence, which is the need to produce enough evidence to make a case.17 The NRC has researched the definition of deliberate ignorance used by the Supreme Court and federal circuit courts to inform the NRC’s definition of this term. In drafting the proposed amendments to 10 CFR 2.202, the NRC reviewed the way in which the ASLB has interpreted the burden of proof in hearings on challenges to the immediate effectiveness of an order. The NRC also reviewed the NRC’s 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. Deliberate Misconduct Rule The NRC’s predecessor agency, the Atomic Energy Commission, established the criteria used to conduct enforcement activities in 1972.18 Early guidance did not discuss ‘‘willfulness’’ and instead advised licensees that a broad range of enforcement actions could be applied to a range of violations. In 1979, the Commission directed the NRC staff to prepare a comprehensive Enforcement Policy that applied to applicants and licensees but not to employees of applicants and licensees. The first version of the NRC Enforcement Policy, adopted in 1982, stated that the Severity Level or significance of a violation may be increased upon a finding of willfulness.19 The NRC Enforcement Policy defined ‘‘willfulness’’ as including ‘‘a spectrum of violations ranging from deliberate intent to violate or falsify to and including careless disregard for requirements.’’ 20 Therefore, under the original Enforcement Policy, the NRC could have found that an applicant or licensee violated a rule, order, or license condition without regard to whether the applicant or licensee intended to commit, or knew that it was committing, a violation, but the Severity Level or significance depended, in part, on whether the violation was willful. Under the current NRC Enforcement Policy, willfulness remains a factor in assessing the Severity Level or significance of a violation (NRC Enforcement Policy, dated January 28, 16 Director, OWCP Department of Labor v. Greenwich Collieries, 512 U.S. 267, 272–81, 114 S. Ct. 2251, 2255–59 (1994). 17 Id. 18 37 FR 21962; October 17, 1972. 19 47 FR 9987; March 9, 1982. 20 Id. at 9990. PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 8099 2013, ADAMS Accession No. ML12340A295). In 1990, the Commission published the proposed Deliberate Misconduct Rule to address willful misconduct by persons not licensed by the NRC.21 Until that time, a licensee was able to dismiss an employee for willful misconduct ‘‘either by its own decision or because the NRC formally order[ed] removal of the employee from licensed activity.’’ 22 In the 1990 proposed Deliberate Misconduct Rule’s statement of considerations, the Commission stated its concern that such an employee, following dismissal, could seek other nuclear-related employment without the NRC’s knowledge of this employment or the new employer’s knowledge of the employee’s past willful misconduct.23 The Commission also noted that ‘‘willful acts of licensees’ contractors, vendors, or their employees have caused licensees to be in violation of Commission requirements.’’ 24 The purpose of the 1990 proposed Deliberate Misconduct Rule was to address unlicensed persons who are engaged in licensed activities and whose willful misconduct ‘‘causes a licensee to be in violation of a Commission requirement or places in question the NRC’s reasonable assurance of adequate protection of the public health and safety.’’ 25 Under the 1990 proposed Deliberate Misconduct Rule, an act was deemed willful if a person knew that the conduct was prohibited or exhibited a careless disregard for whether the conduct was prohibited. The 1990 proposed Deliberate Misconduct Rule described the term ‘‘careless disregard’’ as behavior that ‘‘connotes a reckless disregard or callous . . . indifference toward one’s responsibilities or the consequences of one’s actions.’’ 26 In the statement of considerations for the 1990 proposed Deliberate Misconduct Rule, the Commission noted that the rule would not be applied against ‘‘conscientious people’’ who simply acted negligently.27 The Commission published the Deliberate Misconduct Rule as a final rule on August 15, 1991 (‘‘1991 final Deliberate Misconduct Rule’’).28 The 1991 final Deliberate Misconduct Rule promulgated the following provisions: 10 CFR 30.10, 40.10, 50.5, 60.11, 61.9b, 21 55 22 Id. FR 12374; April 3, 1990. at 12374 (alteration added). 23 Id. 24 Id. 25 Id. 26 Id. 27 Id. 28 56 E:\FR\FM\11FEP1.SGM at 12377. FR 40664. 11FEP1 8100 Federal Register / Vol. 79, No. 28 / Tuesday, February 11, 2014 / Proposed Rules ehiers on DSK2VPTVN1PROD with PROPOSALS-1 70.10, 72.12, and 110.7b. These Deliberate Misconduct Rule provisions applied to NRC licensees, any employee of an NRC licensee, and any contractor (including a supplier or consultant), subcontractor, or any employee of a contractor or subcontractor, of any licensee.29 These Deliberate Misconduct Rule provisions placed licensed and unlicensed persons on notice that they may be subject to enforcement action for deliberate misconduct that causes or would have caused, if not detected, a licensee to be in violation of any of the Commission’s requirements, or for deliberately providing to the NRC, a licensee, or contractor information that is incomplete or inaccurate in some respect material to the NRC. In addition, the 1991 final Deliberate Misconduct Rule made conforming changes to the corresponding ‘‘Scope’’ provisions (i.e., 10 CFR 30.1, 40.2, 50.1, 60.1, 61.1, 70.2, 72.2, and 110.1) to provide express notice to all applicable persons that they would be subject to the Deliberate Misconduct Rule. Similarly, the 1991 final Deliberate Misconduct Rule amended 10 CFR 150.2, ‘‘Scope,’’ to provide notice to Agreement State licensees conducting activities under reciprocity in areas of NRC jurisdiction that they are subject to the applicable Deliberate Misconduct Rule provisions (10 CFR 30.10, 40.10, or 70.10). The statement of considerations for the 1991 final Deliberate Misconduct Rule included the NRC’s responses to public comments received on the 1990 proposed Deliberate Misconduct Rule. One group of comments raised the concern that including ‘‘careless disregard’’ as a type of willful misconduct would be a disincentive to nuclear-related employment.30 In response to these comments, the Commission modified the rule to only apply to a person who engages in deliberate misconduct or who deliberately submits incomplete or inaccurate information, narrowing the scope of the Deliberate Misconduct Rule.31 The Commission predicted that this narrowed scope of the rule would ‘‘not differ significantly from the range of actions that might subject the 29 In a 1998 rulemaking, the Commission expanded the scope of the Deliberate Misconduct Rule to additional categories of persons, including applicants for NRC licenses (63 FR 1890; January 13, 1998). The 1998 rule also added new Deliberate Misconduct Rule provisions to 10 CFR Parts 52 and 71 (10 CFR 52.9 and 10 CFR 71.11). The 10 CFR Part 52 and the 10 CFR Part 71 Deliberate Misconduct Rule provisions were later redesignated as 10 CFR 52.4 and 10 CFR 71.8, respectively. 30 56 FR 40675. 31 Id. VerDate Mar<15>2010 14:38 Feb 10, 2014 Jkt 232001 individual to criminal prosecution.’’ 32 Yet, the Geisen enforcement proceeding and parallel criminal prosecution, previously described, indicate that the scope of the current Deliberate Misconduct Rule differs from the range of actions subject to criminal prosecution. Immediately Effective Orders The Commission’s procedures to initiate formal enforcement action are found in the regulations set forth in 10 CFR Part 2, Subpart B. These regulations include 10 CFR 2.202, ‘‘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.33 The Commission’s statutory authority to issue an order is Section 161 of the AEA.34 The NRC may issue orders in lieu of or in addition to civil penalties (Section 2.3.5 of the NRC Enforcement Policy (2013)). When the NRC determines that the conduct that caused a violation was willful or when the Commission determines 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 a prior opportunity for a hearing before the order goes into effect.35 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. On the same day that the Commission published the 1990 proposed Deliberate Misconduct Rule, it also published a related proposed rule that would expressly allow the Commission to issue orders to unlicensed persons, ‘‘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.’’ 36 This proposed rule concerned amendments to 10 CFR 2.202 and other 10 CFR Part 2 provisions.37 At the time of the April 1990 proposed rule, 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 April 1990 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].’’ 38 These proposed changes were adopted, with some modifications, in the 1991 final Deliberate Misconduct Rule.39 In this regard, the 1991 final Deliberate Misconduct Rule amended 10 CFR 2.202 and other provisions of 10 CFR Part 2 (i.e., 10 CFR 2.1, 2.201, 2.204, 2.700, and Appendix C to 10 CFR Part 2), which authorized the issuance of an order to unlicensed persons otherwise subject to the NRC’s jurisdiction. On July 5, 1990, the Commission published another proposed rule that would make additional changes to 10 CFR 2.202.40 These additional changes pertained to orders that are made immediately effective. 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.’’ 41 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.’’ 42 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 aspect of an immediately effective order and that 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.43 After receiving public comments on the July 5, 1990, proposed rule, the Commission published a final rule on 32 Id. 38 Id. 33 10 39 56 CFR 2.202(a). 34 42 U.S.C. 2201. 35 10 CFR 2.202(b). 36 55 FR 12370, 12371; April 3, 1990. 37 Id. at 12373–74. PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 at 12372. FR 40664; August 15, 1991. 40 55 FR 27645. 41 Id. 42 Id. 43 Id. at 27646. E:\FR\FM\11FEP1.SGM 11FEP1 Federal Register / Vol. 79, No. 28 / Tuesday, February 11, 2014 / Proposed Rules May 12, 1992.44 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.45 Accordingly, the final rule amended § 2.202(c) ‘‘to allow early challenges to the immediate effectiveness aspect of immediately effective orders.’’ 46 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 the defendant’s motion to set aside the immediate effectiveness of the order ‘‘expeditiously’’ (10 CFR 2.202(c)(2)(i)), generally within 15 days.47 Therefore, the Commission struck a balance between the governmental interests in protecting public health and safety and the individual interests in fairness by requiring that challenges to immediately effective orders be heard expeditiously. ehiers on DSK2VPTVN1PROD with PROPOSALS-1 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, which state that the order and the NRC staff’s determination that it is necessary to make the order immediately effective are ‘‘not based on adequate evidence, but on mere suspicion, unfounded allegations, or error.’’ 48 The respondent’s obligation to challenge the order is known as the ‘‘burden of going forward.’’ 49 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.’’ 50 In a 2005 matter, the Board described what the NRC staff must prove and stated: The 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 C.F.R. § 2.202(a)(1)), and (2) the violation was 44 57 FR 20194. at 20195. 46 Id. at 20194. 47 Id. at 20196. 48 10 CFR 2.202(c)(2)(i). 49 United Evaluation Services, Inc., LBP–02–13, 55 NRC 351, 354 (2002). 50 Id. 45 Id. VerDate Mar<15>2010 14:38 Feb 10, 2014 Jkt 232001 ‘willful,’ or the violation poses a risk to ‘the public health, safety, or interest’ that requires immediate action (id. § 2.202(a)(5)).51 Although Mr. Geisen never challenged the immediate effectiveness aspect of the Commission’s order (which barred him from involvement in all NRC-licensed activities for 5 years), 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 party subject to the order to show that the order is based on mere suspicion, unfounded allegations, or error.52 This proposed rule would clarify that the burden of persuasion is the obligation of the NRC staff, not the party subject to the order. 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 and stated that: 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.53 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.’’ 54 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 51 Safety Light Corp. (Bloomsburg, Pennsylvania Site), LBP–05–02, 61 NRC 53, 61 (2005) (emphasis in the original). 52 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 C.F.R. § 2.202(c)(2)(i). All in 20 days, unless extended. id. § 2.202(a)(2)’’) (emphasis in the original). 53 55 54 57 PO 00000 FR 27645–46. FR 20196. Frm 00005 Fmt 4702 8101 witnesses, but this power is not specified in 10 CFR 2.202. III. Discussion of Proposed Changes Deliberate Misconduct Rule The NRC proposes to incorporate the concept of deliberate ignorance into the various Deliberate Misconduct Rule provisions by (1) prohibiting a person from submitting information where the person subjectively believes that there is a high probability that the information is incomplete or inaccurate but takes deliberate actions to remain ignorant of the incompleteness or inaccuracy of that information; and (2) extending the Deliberate Misconduct Rule’s definition of ‘‘deliberate misconduct by a person’’ to include situations where the person subjectively believes that there is a high probability that an act or omission will cause a violation but the person takes deliberate action to avoid confirming or learning whether the act or omission will cause a violation. In drafting this proposed rule, the NRC reviewed definitions of ‘‘deliberate ignorance’’ from the Supreme Court and all federal circuit courts to help develop the most appropriate definition of the term for the agency. In Global-Tech Appliances, Inc. v. SEB S.A.,55 the Supreme Court found that it is reasonable to infer knowledge from willful blindness, or deliberate ignorance, as long as deliberate ignorance or willful blindness is properly defined so as not to be conflated with recklessness or negligence. In this case, the Supreme Court recognized that every Court of Appeals, with the exception of the District of Columbia Circuit, has fully embraced the theory that the knowledge requirement of criminal statutes is satisfied by either (1) actual knowledge or (2) constructive knowledge through ‘‘deliberate ignorance’’ or ‘‘willful blindness.’’ 56 The majority of Courts of Appeals make the equivalency of knowledge and deliberate ignorance or willful blindness explicit in their pattern or model jury instructions.57 55 131 S. Ct. 2060 (2011). term ‘‘willful blindness’’ is akin to the term ‘‘deliberate ignorance.’’ In Global-Tech Appliances, the Court stated that ‘‘a willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts.’’ Global-Tech Appliances, 131 S. Ct. at 2070–71. 57 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 56 The Continued Sfmt 4702 E:\FR\FM\11FEP1.SGM 11FEP1 8102 Federal Register / Vol. 79, No. 28 / Tuesday, February 11, 2014 / Proposed Rules ehiers on DSK2VPTVN1PROD with PROPOSALS-1 Other Courts of Appeals have not used pattern or model jury instructions to define deliberate ignorance or willful blindness, but these courts have explained in case law that constructive knowledge may be demonstrated by a showing of deliberate ignorance or willful blindness.58 The District of Columbia Circuit is the only federal Court of Appeals that has not embraced the theory of deliberate ignorance or willful blindness. Rather, the District of Columbia Circuit has expressed concern with the trend to equate deliberate ignorance and willful blindness with knowledge, stating that ‘‘[i]t makes obvious sense to say that a person cannot act ‘knowingly’ if she does not know what is going on. To add that such a person nevertheless acts ‘knowingly’ if she intentionally does not know what is going on is something else again.’’ 59 The Supreme Court recognized the District of Columbia Circuit’s decision not to embrace fully the deliberate ignorance or willful blindness standard in Global-Tech Appliances, yet the Supreme Court still found that it is reasonable to infer knowledge from deliberate ignorance or willful blindness. The Court stated that ‘‘while the Courts of Appeals articulate the doctrine of willful blindness in slightly different ways, all appear to agree on two basic requirements: (1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact.’’ 60 According to the Supreme Court, the standard of deliberate ignorance or willful blindness surpasses the standards of recklessness and negligence such that a willfully blind defendant ‘‘can almost be said to have actual knowledge of the critical facts.’’ 61 Therefore, deliberate ignorance or willful blindness satisfies the knowledge requirement of criminal statutes. In this proposed rule, the NRC would amend the Deliberate Misconduct Rule to incorporate ‘‘deliberate ignorance’’ as an additional basis on which to take enforcement action against persons who violate the rule. Such an amendment would therefore allow the Commission jury instructions are given legal weight through their use in trials and subsequent approval of that use on appeal. 58 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. 59 United States v. Alston-Graves, 435 F.3d 331, 337 (D.C. Cir. 2006). 60 Global-Tech Appliances, 131 S. Ct. at 2070 (citations omitted). 61 Id. at 2070–71. VerDate Mar<15>2010 14:38 Feb 10, 2014 Jkt 232001 and the ASLB to apply collateral estoppel, if appropriate, in future NRC enforcement proceedings and would avoid anomalies like the outcome of the Geisen case. regulation that authorizes the Commission to make an order immediately effective, and making other minor edits to improve clarity and readability. Immediately Effective Orders This proposed rule would amend 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; whereas the party challenging the order bears the burden of going forward.62 Specifically, the proposed amendment would state that the NRC staff must show that (1) adequate evidence supports the grounds for the order and (2) immediate effectiveness is warranted.63 This proposed rule would further amend 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 proposed rule would allow any party to the proceeding to file a motion requesting the Board to order live testimony. The proposed amendments would 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 prejudiced because the immediately effective order would remain in effect throughout the hearing. The proposed rule would also amend 10 CFR 2.202(c)(2) to clarify that the presiding officer shall conduct any live testimony pursuant to 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 proposed rule would amend 10 CFR 2.202(c)(2) by dividing the paragraph into smaller paragraphs, adding a cross reference to 10 CFR 2.202(a)(5), which is the Conforming Amendments The NRC regulation, 10 CFR 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). When first promulgated on January 13, 1998, the NRC designated the 10 CFR Part 71 Deliberate Misconduct Rule provision as 10 CFR 71.11; 64 the NRC made the appropriate conforming amendment to 10 CFR 150.2, by listing 10 CFR 71.11 as a cross reference.65 The NRC later redesignated the provision as 10 CFR 71.8,66 but did not make a conforming amendment to update the cross-reference in 10 CFR 150.2. The current 10 CFR 150.2 provision still lists the 10 CFR Part 71 Deliberate Misconduct Rule provision as 10 CFR 71.11. This proposed rule would make the appropriate conforming changes 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 10 CFR 71.8. 62 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). 63 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). PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 IV. Section-by-Section Analysis Deliberate Misconduct Rule Changes This proposed rule would amend the following Deliberate Misconduct Rule regulations: 10 CFR 30.10, 40.10, 50.5, 52.4, 60.11, 61.9b, 63.11, 70.10, 71.8, 72.12, 76.10, and 110.7b. The language of these regulations is similar, and in many instances, identical. The differences in language typically relate to the categories of persons or other entities being regulated by that regulation. Other than 10 CFR 52.4 and 10 CFR 71.8, the format of these regulations is the same. The proposed rule would revise paragraph (a)(2) of 10 CFR 30.10, 40.10, 64 63 FR 1899. FR 1901. 66 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, and 3790; January 26, 2004). 65 63 E:\FR\FM\11FEP1.SGM 11FEP1 ehiers on DSK2VPTVN1PROD with PROPOSALS-1 Federal Register / Vol. 79, No. 28 / Tuesday, February 11, 2014 / Proposed Rules 50.5, 60.11, 61.9b, 63.11, 70.10, 72.12, 76.10, and 110.7b; paragraph (c)(2) of 10 CFR 52.4; and paragraph (b)(2) of 10 CFR 71.8 to add a clause that expressly prohibits the deliberate submission of information to the NRC or other specified entity or individual when the person submitting the information subjectively believes that there is a high probability that the information submitted is incomplete or inaccurate in some respect material to the NRC but takes deliberate action to remain ignorant of the incompleteness or inaccuracy of that information. The clause added by the proposed rule would be designated as paragraph (c)(2)(ii) for 10 CFR 52.4, paragraph (b)(2)(ii) of 10 CFR 71.8, and paragraph (a)(2)(ii) for all other Deliberate Misconduct Rule regulations. The proposed rule will designate the existing prohibition, on the deliberate submission of information to the NRC or other specified entity or individual when the person submitting the information knows to be incomplete or inaccurate in some respect material to the NRC, as paragraph (c)(2)(i) for 10 CFR 52.4, paragraph (b)(2)(i) of 10 CFR 71.8, and paragraph (a)(2)(i) for all other Deliberate Misconduct Rule regulations. The proposed rule would revise paragraph (c) of 10 CFR 30.10, 40.10, 50.5, 60.11, 61.9b, 63.11, 70.10, 72.12, 76.10, and 110.7b. Paragraph (c) defines the term ‘‘deliberate misconduct.’’ Specifically, the proposed rule would revise the introductory text of paragraph (c) and the language of paragraphs (c)(1)–(2). These revisions are editorial in nature and support, in terms of readability and clarity, the addition of a new paragraph (c)(3). New paragraph (c)(3) would expand the definition of ‘‘deliberate misconduct’’ to include an intentional act or omission that the person subjectively believes has a high probability of causing a violation described in paragraph (c)(1) or (c)(2) but the person takes deliberate action to remain ignorant of whether the act or omission causes or would have caused, if not detected, such a violation. Similarly, the proposed rule would revise paragraph (b) of 10 CFR 52.4 and paragraph (d) of 10 CFR 71.8; these paragraphs define the term ‘‘deliberate misconduct’’ for those regulations. The proposed rule would revise the introductory text of paragraph (b) and the language of paragraphs (b)(i)–(ii) for 10 CFR 52.4, and the introductory text of paragraph (d) and the language of paragraphs (d)(1)–(2) for 10 CFR 71.8. These revisions are editorial in nature and support, in terms of readability and clarity, the addition of a new paragraph (b)(iii), for 10 CFR 52.4, and the VerDate Mar<15>2010 14:38 Feb 10, 2014 Jkt 232001 addition of a new paragraph (d)(3), for 10 CFR 71.8. New paragraphs, 10 CFR 52.4(b)(iii) and 10 CFR 71.8(d)(3), would expand the definition of ‘‘deliberate misconduct’’ to include an intentional act or omission that the person subjectively believes has a high probability of causing a violation, but the person takes deliberate action to remain ignorant of whether the act or omission causes or would have caused, if not detected, such a violation. Immediate Effectiveness of Orders Rule Changes Section 2.202 The proposed rule would make several changes to 10 CFR 2.202(c)(2)(i). The proposed rule would revise 10 CFR 2.202(c)(2)(i) by dividing it into several smaller paragraphs. The proposed rule would revise 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 proposed rule would further revise 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 proposed rule would add a new paragraph, 10 CFR 2.202(c)(2)(ii), which would allow any party to file a motion with the presiding officer requesting that the presiding officer order live testimony. The proposed new 10 CFR 2.202(c)(2)(ii) would also authorize the presiding officer, on its own motion, to order live testimony. The proposed rule would redesignate 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 would concern the staff’s response to a motion challenging the immediate effectiveness of an order. The proposed 10 CFR 2.202(c)(2)(iii) would authorize 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 proposed rule would add 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 proposed rule would make a minor clarifying change to 10 CFR 2.202(c)(2)(ii) and redesignate that paragraph as 10 CFR 2.202(c)(2)(v). The proposed rule would add a new paragraph, 10 CFR 2.202(c)(2)(vi), which would clarify that the licensee or other person challenging the immediate effectiveness of an order bears the burden of going forward, whereas the PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 8103 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 proposed rule would make 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 redesignate those sentences as a new paragraph, 10 CFR 2.202(c)(2)(vii). The proposed rule would make minor clarifying changes to the eighth sentence of 10 CFR 2.202(c)(2)(i), and would redesignate the sixth, seventh, and eighth sentences of the 10 CFR 2.202(c)(2)(i) as a new paragraph, 10 CFR 2.202(c)(2)(viii). These sentences concern the direction to the presiding officer to uphold the immediate effectiveness of the order upon finding adequate evidence to support immediate effectiveness, the final agency action status of an order upholding immediate effectiveness, and the prompt referral by the presiding officer of an order setting aside immediate effectiveness to the Commission and that such order will not be effective pending further order of the Commission, respectively. Conforming Amendments to 10 CFR 150.2 This proposed rule would revise the last sentence of 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 10 CFR 71.8. Administrative Changes to Authority Citations The authority citations for 10 CFR Parts 2, 30, 60, 61, 63, 71, 72, 76, 110, and 150 would be revised to make editorial changes that are administrative in nature, including inserting missing parentheses and punctuation. The proposed revisions would not change the statutory authority. V. 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). In complying with this directive, proposed editorial changes have been made to the various NRC regulations that are the subject of this proposed E:\FR\FM\11FEP1.SGM 11FEP1 8104 Federal Register / Vol. 79, No. 28 / Tuesday, February 11, 2014 / Proposed Rules rule. These editorial changes, if promulgated, will improve the organization and readability of these regulations. These types of changes are not discussed further in this document. The NRC requests comment on the proposed rule with respect to the clarity and effectiveness of the language used. VI. 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, private sector, consensus standards bodies unless using such a standard is inconsistent with applicable law or is otherwise impractical. In this rule, the NRC is proposing to amend its Deliberate Misconduct Rule and 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. This action does not constitute the establishment of a government-unique standard as defined in Office of Management and Budget (OMB) Circular A–119 (1998). VII. Environmental Impact: Categorical Exclusion The NRC has determined that the issuance of this proposed 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 proposed rule is a type of action described in categorical exclusions 10 CFR 51.22(c)(1)–(2). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this rulemaking. VIII. Paperwork Reduction Act Statement ehiers on DSK2VPTVN1PROD with PROPOSALS-1 This proposed rule does not contain new or amended information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Existing requirements were approved by OMB, approval numbers 3150–0017, –0020, –0011, –0151, –0127, –0135, –0199, –0009, –0008, –0132, and –0036. Public Protection Notification The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number. VerDate Mar<15>2010 14:38 Feb 10, 2014 Jkt 232001 IX. Regulatory Analysis The proposed rule would amend the NRC’s Deliberate Misconduct Rule regulations to incorporate the concept of deliberate ignorance as an additional basis on which to take enforcement action and to make clarifications to the NRC regulations governing hearings on challenges to the immediate effectiveness of orders. In addition, the proposed rule would make minor, conforming amendments to 10 CFR 150.2. These proposed amendments, if promulgated, do not result in a cost to the NRC and do not result in a cost to licensees or others who would comply with the proposed amendments. These amendments would accrue a benefit by aligning NRC enforcement proceedings with criminal proceedings, making NRC enforcement proceedings more efficient. The amendments to the rule governing hearings on challenges to immediate effectiveness of orders would not change the existing processes but would merely clarify the rule. These amendments would not result in a cost to the NRC or to respondents in hearings on challenges to immediate effectiveness of orders but a benefit would accrue to the extent that potential confusion over the meaning of the NRC’s regulations is removed. The NRC believes that the proposed rule would improve the efficiency of NRC enforcement proceedings without imposing costs on either the NRC or on participants in such proceedings. X. Regulatory Flexibility Act Certification In accordance with the Regulatory Flexibility Act, as amended, 5 U.S.C. 605(b), the NRC certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect small businesses as they are defined in Section 3 of the Small Business Act, 15 U.S.C. 632, and the standards set forth in 13 CFR Part 121, and within the size standards established by the NRC (10 CFR 2.810). However, this proposed rule would not have a significant economic impact on these entities because (1) the amendments to the Deliberate Misconduct Rule do not impose any costs of compliance and (2) the proposed amendments to the rules governing hearings on immediate effectiveness of orders do not impose additional costs and would improve the efficiency of these hearings by clarifying the rules governing these hearings. PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 XI. 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 proposed 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 proposed 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’’ (a copy of which may be viewed at https://www.nrc.gov/readingrm/doc-collections/managementdirectives/). 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 program elements 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 program elements 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 program elements do not meet the criteria of Category A or B but contain 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 program elements 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) program elements are not required for compatibility but are identified as E:\FR\FM\11FEP1.SGM 11FEP1 8105 Federal Register / Vol. 79, No. 28 / Tuesday, February 11, 2014 / Proposed Rules 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 program elements address areas of regulation that cannot be relinquished to Agreement States under the AEA, or the 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.’’ If the NRC promulgates the proposed rule’s amendments in a final rule, 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 PROPOSED RULE Compatibility Section Change Subject Existing New Part 2 2.202(c) ............................ Revised ...................... Orders. ........................................................ NRC .......................... NRC. C ............................... C. C ............................... C. NRC .......................... NRC. NRC .......................... NRC. NRC .......................... NRC. C ............................... C. NRC .......................... NRC. C ............................... C. C ............................... C. NRC .......................... NRC. NRC .......................... NRC. NRC .......................... NRC. D ............................... D. Part 30 30.10(a) and (c) ............... Revised ...................... Deliberate misconduct. ............................... Part 40 40.10(a) and (c) ............... Revised ...................... Deliberate misconduct. ............................... Part 50 50.5(a) and (c) ................. Revised ...................... Deliberate misconduct. ............................... Part 52 52.4(b) and (c) ................. Revised ...................... Deliberate misconduct. ............................... Part 60 60.11(a) and (c) ............... Revised ...................... Deliberate misconduct. ............................... Part 61 61.9b(a) and (c) ............... Revised ...................... Deliberate misconduct. ............................... Part 63 63.11(a) and (c) ............... Revised ...................... Deliberate misconduct. ............................... Part 70 70.10(a) and (c) ............... Revised ...................... Deliberate misconduct. ............................... Part 71 71.8(b) and (d) ................. Revised ...................... Deliberate misconduct. ............................... Part 72 72.12(a) and (c) ............... Revised ...................... Deliberate misconduct. ............................... Part 76 76.10(a) and (c) ............... Revised ...................... Deliberate misconduct. ............................... Part 110 ehiers on DSK2VPTVN1PROD with PROPOSALS-1 110.7b(a) and (c) ............. Revised ...................... Deliberate misconduct. ............................... Part 150 150.2 ................................ VerDate Mar<15>2010 Revised ...................... 14:38 Feb 10, 2014 Jkt 232001 PO 00000 Deliberate misconduct. ............................... Frm 00009 Fmt 4702 Sfmt 4702 E:\FR\FM\11FEP1.SGM 11FEP1 ehiers on DSK2VPTVN1PROD with PROPOSALS-1 8106 Federal Register / Vol. 79, No. 28 / Tuesday, February 11, 2014 / Proposed Rules XII. Backfitting and Issue Finality The proposed rule would revise the Deliberate Misconduct Rule as it appears in various sections of 10 CFR Chapter I. The proposed rule would revise the Deliberate Misconduct Rule by incorporating the concept of deliberate ignorance as an additional basis on which to take enforcement action against persons who violate the rule. The proposed rule would also revise 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 proposed rule would also revise 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 proposed revisions to the Deliberate Misconduct Rule would clarify the NRC’s prohibition of deliberate misconduct to provide notice of proscribed conduct to all affected persons. These revisions would not change, modify, or affect the design, procedures, or regulatory approvals protected under the various NRC backfitting and issue finality provisions. Accordingly, the proposed revisions to the Deliberate Misconduct Rule, if promulgated as a final rule, would not represent backfitting imposed on any entity protected by the backfitting provisions in 10 CFR Parts 50, 70, 72, or 76, nor would the proposed revisions be inconsistent with any issue finality provision in 10 CFR Part 52. The proposed revisions to 10 CFR 2.202 would clarify the agency’s adjudicatory procedures with respect to challenges to immediate effectiveness of orders. These revisions would not change, modify, or affect the design, procedures, or regulatory approvals protected under the various NRC backfitting and issue finality provisions. Accordingly, the proposed revisions to the adjudicatory procedures, if adopted in final form, would not represent backfitting imposed on any entity protected by backfitting provisions in 10 CFR Parts 50, 70, 72, or 76, nor would the proposed revisions be inconsistent with any issue finality provision in 10 CFR Part 52. Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalties, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal. List of Subjects 10 CFR Part 70 10 CFR Part 2 Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Criminal penalties, Hazardous materials transportation, Material control and accounting, Nuclear materials, Packaging and containers, VerDate Mar<15>2010 14:38 Feb 10, 2014 Jkt 232001 10 CFR Part 30 Byproduct material, Criminal penalties, Government contracts, Intergovernmental relations, Isotopes, Nuclear materials, Radiation protection, Reporting and recordkeeping requirements. 10 CFR Part 40 Criminal penalties, Government contracts, Hazardous materials transportation, Nuclear materials, Reporting and recordkeeping requirements, Source material, Uranium. 10 CFR Part 50 Antitrust, Classified information, Criminal penalties, Fire protection, Intergovernmental relations, Nuclear power plants and reactors, Radiation protection, Reactor siting criteria, Reporting and recordkeeping requirements. 10 CFR Part 52 Administrative practice and procedure, Antitrust, Backfitting, Combined license, Early site permit, Emergency planning, Fees, Inspection, Limited work authorization, Nuclear power plants and reactors, Probabilistic risk assessment, Prototype, Reactor siting criteria, Redress of site, Reporting and recordkeeping requirements, Standard design, Standard design certification. 10 CFR Part 60 Criminal penalties, High-level waste, Nuclear materials, Nuclear power plants and reactors, Reporting and recordkeeping requirements, Waste treatment and disposal. 10 CFR Part 61 Criminal penalties, Low-level waste, Nuclear materials, Reporting and recordkeeping requirements, Waste treatment and disposal. 10 CFR Part 63 Criminal penalties, High-level waste, Nuclear power plants and reactors, Reporting and recordkeeping requirements, Waste treatment and disposal. PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 Radiation protection, Reporting and recordkeeping requirements, Scientific equipment, Security measures, Special nuclear material. 10 CFR Part 71 Criminal penalties, Hazardous materials transportation, Nuclear materials, Packaging and containers, Reporting and recordkeeping requirements. 10 CFR Part 72 Administrative practice and procedure, Criminal penalties, Manpower training programs, Nuclear materials, Occupational safety and health, Penalties, Radiation protection, Reporting and recordkeeping requirements, Security measures, Spent fuel, Whistleblowing. 10 CFR Part 76 Certification, Criminal penalties, Radiation protection, Reporting and recordkeeping requirements, Security measures, Special nuclear material, Uranium enrichment by gaseous diffusion. 10 CFR Part 110 Administrative practice and procedure, Classified information, Criminal penalties, Export, Import, Intergovernmental relations, Nuclear materials, Nuclear power plants and reactors, Reporting and recordkeeping requirements, Scientific equipment. 10 CFR Part 150 Criminal penalties, Hazardous materials transportation, Intergovernmental relations, Nuclear materials, 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. 553; the NRC is proposing to amend 10 CFR parts 2, 30, 40, 50, 52, 60, 61, 63, 70, 71, 72, 76, 110, and 150 as follows: PART 2—AGENCY RULES OF PRACTICE AND PROCEDURE 1. The authority citation for part 2 is revised to read as follows: ■ Authority: Atomic Energy Act secs. 161, 181, 191 (42 U.S.C. 2201, 2231, 2241); Energy Reorganization Act sec. 201 (42 U.S.C. 5841); 5 U.S.C. 552; Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note). Section 2.101 also issued under Atomic Energy Act secs. 53, 62, 63, 81, 103, 104 (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, E:\FR\FM\11FEP1.SGM 11FEP1 Federal Register / Vol. 79, No. 28 / Tuesday, February 11, 2014 / Proposed Rules 2135); Nuclear Waste Policy Act sec. 114(f) (42 U.S.C. 10143(f)); National Environmental Policy Act sec. 102 (42 U.S.C. 4332); Energy Reorganization Act sec. 301 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105, 2.321 also issued under Atomic Energy Act secs. 102, 103, 104, 105, 183i, 189 (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Sections 2.200–2.206 also issued under Atomic Energy Act secs. 161, 186, 234 (42 U.S.C. 2201(b),(i),(o), 2236, 2282); sec. 206 (42 U.S.C. 5846). Section 2.205(j) also issued under Pub. L. 101–410, as amended by section 3100(s), Pub. L. 104–134 (28 U.S.C. 2461 note). Subpart C also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239). Section 2.301 also issued under 5 U.S.C. 554. Sections 2.343, 2.346, 2.712 also issued under 5 U.S.C. 557. Section 2.340 also issued under Nuclear Waste Policy Act secs. 135, 141, Pub. L. 97–425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 2.390 also issued under 5 U.S.C. 552. Sections 2.600– 2.606 also issued under sec. 102 (42 U.S.C. 4332). Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553; Atomic Energy Act sec. 29 (42 U.S.C. 2039). Subpart K also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239); Nuclear Waste Policy Act sec. 134 (42 U.S.C. 10154). Subpart L also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239). Subpart M also issued under Atomic Energy Act secs. 184, 189 (42 U.S.C. 2234, 2239). Subpart N also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239). 2. In § 2.202, revise paragraph (c)(2) to read as follows: ■ § 2.202 Orders. ehiers on DSK2VPTVN1PROD with PROPOSALS-1 * * * * * (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 VerDate Mar<15>2010 14:38 Feb 10, 2014 Jkt 232001 be that taking live testimony would assist in its decision on the motion to set aside the immediate effectiveness of the order. (iii) In cases where the presiding officer orders live testimony, the NRC staff may present its response through live testimony or by a written response; if the NRC staff chooses to respond in writing, it shall respond within 5 days of the receipt of the presiding officer’s order granting live testimony. Otherwise, the NRC staff shall respond in writing within 5 days of the receipt of a motion to set aside the immediate effectiveness of the order that does not include a motion to order live testimony or the presiding officer’s order denying a motion for live testimony. (iv) The presiding officer shall conduct any live testimony pursuant to § 2.319, 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 to whom the Commission has issued an immediately effective 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 must 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 will uphold the immediate effectiveness of the order upon finding 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 PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 8107 be effective pending further order of the Commission. * * * * * PART 30—RULES OF GENERAL APPLICABILITY TO DOMESTIC LICENSING OF BYPRODUCT MATERIAL 3. The authority citation for part 30 is revised to read as follows: ■ Authority: Atomic Energy Act secs. 81, 82, 161, 181, 182, 183, 186, 223, 234 (42 U.S.C. 2111, 2112, 2201, 2231, 2232, 2233, 2236, 2273, 2282); Energy Reorganization Act secs. 201, 202, 206 (42 U.S.C. 5841, 5842, 5846); Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 109–58, 119 Stat. 549 (2005). Section 30.7 also issued under Energy Reorganization Act sec. 211, Pub. L. 95–601, sec. 10, as amended by Pub. L. 102–486, sec. 2902 (42 U.S.C. 5851). Section 30.34(b) also issued under Atomic Energy Act sec. 184 (42 U.S.C. 2234). Section 30.61 also issued under Atomic Energy Act sec. 187 (42 U.S.C. 2237). 4. In § 30.10, revise paragraphs (a)(2) and (c) to read as follows: ■ § 30.10 Deliberate misconduct. (a) * * * (2) Deliberately submit to the NRC, a licensee, a certificate holder, an applicant, or a licensee’s, certificate holder’s or applicant’s contractor or subcontractor, information: (i) That the person submitting the information knows to be incomplete or inaccurate in some respect material to the NRC; or (ii) When the person submitting the information subjectively believes that there is a high probability that the information submitted is incomplete or inaccurate in some respect material to the NRC but takes deliberate action to remain ignorant of the incompleteness or inaccuracy of that information. * * * * * (c) For the purposes of paragraph (a)(1) of this section, deliberate misconduct by a person means: (1) An intentional act or omission that the person knows would cause a licensee, certificate holder or applicant to be in violation of any rule, regulation, or order; or any term, condition, or limitation of any license issued by the Commission; (2) An intentional act or omission that the person knows constitutes a violation of a requirement, procedure, instruction, contract, purchase order, or policy of a licensee, certificate holder, applicant, contractor, or subcontractor; or (3) An intentional act or omission that the person subjectively believes has a high probability of causing a violation described in paragraph (c)(1) or (c)(2) of E:\FR\FM\11FEP1.SGM 11FEP1 8108 Federal Register / Vol. 79, No. 28 / Tuesday, February 11, 2014 / Proposed Rules this section, but the person takes deliberate action to remain ignorant of whether the act or omission causes or would have caused, if not detected, such a violation. PART 40—DOMESTIC LICENSING OF SOURCE MATERIAL PART 50—DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES 5. The authority citation for part 40 continues to read as follows: ■ Authority: Atomic Energy Act secs. 11(e)(2), 62, 63, 64, 65, 81, 161, 181, 182, 183, 186, 193, 223, 234, 274, 275 (42 U.S.C. 2014(e)(2), 2092, 2093, 2094, 2095, 2111, 2113, 2114, 2201, 2231, 2232, 2233, 2236, 2243, 2273, 2282, 2021, 2022); Energy Reorganization Act secs. 201, 202, 206 (42 U.S.C. 5841, 5842, 5846); Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 109–59, 119 Stat. 594 (2005). Section 40.7 also issued under Energy Reorganization Act sec. 211, Pub. L. 95–601, sec. 10, as amended by Pub. L. 102–486, sec. 2902 (42 U.S.C. 5851). Section 40.31(g) also issued under Atomic Energy Act sec. 122 (42 U.S.C. 2152). Section 40.46 also issued under Atomic Energy Act sec. 184 (42 U.S.C. 2234). Section 40.71 also issued under Atomic Energy Act sec. 187 (42 U.S.C. 2237). 6. In § 40.10, revise paragraphs (a)(2) and (c) to read as follows: ■ ehiers on DSK2VPTVN1PROD with PROPOSALS-1 § 40.10 Deliberate misconduct. (a) * * * (2) Deliberately submit to the NRC, a licensee, an applicant, or a licensee’s or applicant’s contractor or subcontractor, information: (i) That the person submitting the information knows to be incomplete or inaccurate in some respect material to the NRC; or (ii) When the person submitting the information subjectively believes that there is a high probability that the information submitted is incomplete or inaccurate in some respect material to the NRC but takes deliberate action to remain ignorant of the incompleteness or inaccuracy of that information. * * * * * (c) For the purposes of paragraph (a)(1) of this section, deliberate misconduct by a person means: (1) An intentional act or omission that the person knows would cause a licensee or applicant to be in violation of any rule, regulation, or order; or any term, condition, or limitation of any license issued by the Commission; (2) An intentional act or omission that the person knows constitutes a violation of a requirement, procedure, instruction, contract, purchase order, or policy of a licensee, applicant, contractor, or subcontractor; or (3) An intentional act or omission that the person subjectively believes has a VerDate Mar<15>2010 14:38 Feb 10, 2014 Jkt 232001 high probability of causing a violation described in paragraph (c)(1) or (c)(2) of this section, but the person takes deliberate action to remain ignorant of whether the act or omission causes or would have caused, if not detected, such a violation. 7. The authority citation for part 50 continues to read as follows: ■ Authority: Atomic Energy Act secs. 102, 103, 104, 105, 147, 149, 161, 181, 182, 183, 186, 189, 223, 234 (42 U.S.C. 2132, 2133, 2134, 2135, 2167, 2169, 2201, 2231, 2232, 2233, 2236, 2239, 2273, 2282); Energy Reorganization Act secs. 201, 202, 206 (42 U.S.C. 5841, 5842, 5846); Nuclear Waste Policy Act sec. 306 (42 U.S.C. 10226); Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 109–58, 119 Stat. 194 (2005). Section 50.7 also issued under Pub. L. 95– 601, sec. 10, as amended by Pub. L. 102–486, sec. 2902 (42 U.S.C. 5851). Section 50.10 also issued under Atomic Energy Act secs. 101, 185 (42 U.S.C. 2131, 2235); National Environmental Policy Act sec. 102 (42 U.S.C. 4332). Sections 50.13, 50.54(dd), and 50.103 also issued under Atomic Energy Act sec. 108 (42 U.S.C. 2138). Sections 50.23, 50.35, 50.55, and 50.56 also issued under Atomic Energy Act sec. 185 (42 U.S.C. 2235). Appendix Q also issued under National Environmental Policy Act sec. 102 (42 U.S.C. 4332). Sections 50.34 and 50.54 also issued under sec. 204 (42 U.S.C. 5844). Sections 50.58, 50.91, and 50.92 also issued under Pub. L. 97–415 (42 U.S.C. 2239). Section 50.78 also issued under Atomic Energy Act sec. 122 (42 U.S.C. 2152). Sections 50.80–50.81 also issued under Atomic Energy Act sec. 184 (42 U.S.C. 2234). 8. In § 50.5, revise paragraphs (a)(2) and (c) to read as follows: ■ § 50.5 Deliberate misconduct. (a) * * * (2) Deliberately submit to the NRC, a licensee, an applicant, or a licensee’s or applicant’s contractor or subcontractor, information: (i) That the person submitting the information knows to be incomplete or inaccurate in some respect material to the NRC; or (ii) When the person submitting the information subjectively believes that there is a high probability that the information submitted is incomplete or inaccurate in some respect material to the NRC but takes deliberate action to remain ignorant of the incompleteness or inaccuracy of that information. * * * * * (c) For the purposes of paragraph (a)(1) of this section, deliberate misconduct by a person means: PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 (1) An intentional act or omission that the person knows would cause a licensee or applicant to be in violation of any rule, regulation, or order; or any term, condition, or limitation of any license issued by the Commission; (2) An intentional act or omission that the person knows constitutes a violation of a requirement, procedure, instruction, contract, purchase order, or policy of a licensee, applicant, contractor, or subcontractor; or (3) An intentional act or omission that the person subjectively believes has a high probability of causing a violation described in paragraph (c)(1) or (c)(2) of this section, but the person takes deliberate action to remain ignorant of whether the act or omission causes or would have caused, if not detected, such a violation. PART 52—LICENSES, CERTIFICATIONS, AND APPROVALS FOR NUCLEAR POWER PLANTS 9. The authority for part 52 continues to read as follows: ■ Authority: Atomic Energy Act secs. 103, 104, 147, 149, 161, 181, 182, 183, 185, 186, 189, 223, 234 (42 U.S.C. 2133, 2201, 2167, 2169, 2232, 2233, 2235, 2236, 2239, 2282); Energy Reorganization Act secs. 201, 202, 206, 211 (42 U.S.C. 5841, 5842, 5846, 5851); Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 109–58, 119 Stat. 594 (2005). 10. In § 52.4, revise paragraphs (b) and (c)(2) to read as follows: ■ § 52.4 Deliberate misconduct. * * * * * (b) Definitions. For purposes of this section: Deliberate misconduct by a person or entity means: (i) An intentional act or omission that the person or entity knows would cause a licensee or an applicant for a license, standard design certification, or standard design approval to be in violation of any rule, regulation, or order; or any term, condition, or limitation of any license, standard design certification, or standard design approval issued by the Commission; (ii) An intentional act or omission that the person or entity knows constitutes a violation of a requirement, procedure, instruction, contract, purchase order, or policy of a licensee, holder of a standard design approval, applicant for a license, standard design certification, or standard design approval, or contractor or subcontractor; or (iii) An intentional act or omission that the person or entity subjectively believes has a high probability of causing a violation described in paragraph (i) or (ii) of this definition, E:\FR\FM\11FEP1.SGM 11FEP1 Federal Register / Vol. 79, No. 28 / Tuesday, February 11, 2014 / Proposed Rules but the person or entity takes deliberate action to remain ignorant of whether the act or omission causes or would have caused, if not detected, such a violation. (c) * * * (2) Deliberately submit to the NRC; a licensee, an applicant for a license, standard design certification or standard design approval; or a licensee’s, standard design approval holder’s, or applicant’s contractor or subcontractor, information: (i) That the person or entity submitting the information knows to be incomplete or inaccurate in some respect material to the NRC; or (ii) When the person or entity submitting the information subjectively believes that there is a high probability that the information submitted is incomplete or inaccurate in some respect material to the NRC but takes deliberate action to remain ignorant of the incompleteness or inaccuracy of that information. * * * * * PART 60—DISPOSAL OF HIGH–LEVEL RADIOACTIVE WASTES IN GEOLOGIC REPOSITORIES 11. The authority citation for part 60 is revised to read as follows: ■ Authority: Atomic Energy Act secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 223, 234 (42 U.S.C. 2071, 2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233, 2273, 2282); Energy Reorganization Act secs. 201, 202, 206, 211, Pub. L. 95–601, sec. 10, as amended by Pub. L. 102–486, sec. 2902 (42 U.S.C. 5841, 5842, 5846, 5851); sec. 14, Pub. L. 95–601 (42 U.S.C. 2021a); National Environmental Policy Act sec. 102 (42 U.S.C. 4332); Nuclear Waste Policy Act secs. 114, 117, 121 (42 U.S.C. 10134, 10137, 10141); Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 109–58, 119 Stat. 594 (2005). 12. In § 60.11, revise paragraphs (a)(2) and (c) to read as follows: ■ ehiers on DSK2VPTVN1PROD with PROPOSALS-1 § 60.11 Deliberate misconduct. (a) * * * (2) Deliberately submit to the NRC, a licensee, an applicant, or a licensee’s or applicant’s contractor or subcontractor, information: (i) That the person submitting the information knows to be incomplete or inaccurate in some respect material to the NRC; or (ii) When the person submitting the information subjectively believes that there is a high probability that the information submitted is incomplete or inaccurate in some respect material to the NRC but takes deliberate action to remain ignorant of the incompleteness or inaccuracy of that information. * * * * * VerDate Mar<15>2010 14:38 Feb 10, 2014 Jkt 232001 (c) For the purposes of paragraph (a)(1) of this section, deliberate misconduct by a person means: (1) An intentional act or omission that the person knows would cause a licensee or applicant to be in violation of any rule, regulation, or order; or any term, condition, or limitation of any license issued by the Commission; (2) An intentional act or omission that the person knows constitutes a violation of a requirement, procedure, instruction, contract, purchase order, or policy of a licensee, applicant, contractor, or subcontractor; or (3) An intentional act or omission that the person subjectively believes has a high probability of causing a violation described in paragraph (c)(1) or (c)(2) of this section, but the person takes deliberate action to remain ignorant of whether the act or omission causes or would have caused, if not detected, such a violation. PART 61—LICENSING REQUIREMENTS FOR LAND DISPOSAL OF RADIOACTIVE WASTE 13. The authority citation for part 61 is revised to read as follows: ■ Authority: Atomic Energy Act secs. 53, 57, 62, 63, 65, 81, 161, 181, 182, 183, 223, 234 (42 U.S.C. 2073, 2077, 2092, 2093, 2095, 2111, 2201, 2231, 2232, 2233, 2273, 2282); Energy Reorganization Act secs. 201, 202, 206 (42 U.S.C. 5841, 5842, 5846), sec. 211, Pub. L. 95–601, sec. 10, as amended by Pub. L. 102–486, sec. 2902 (42 U.S.C. 5851). Pub. L. 95–601, secs. 10, 14, 92 Stat. 2951, 2953 (42 U.S.C. 2021a, 5851); Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note); Energy Policy Act of 2005 sec. 651(e), Pub. L. 109–58, 119 Stat. 806–810 (42 U.S.C. 2014, 2021, 2021b, 2111). 14. In § 61.9b, revise paragraphs (a)(2) and (c) to read as follows: ■ § 61.9b Deliberate misconduct. (a) * * * (2) Deliberately submit to the NRC, a licensee, an applicant, or a licensee’s or applicant’s contractor or subcontractor, information: (i) That the person submitting the information knows to be incomplete or inaccurate in some respect material to the NRC; or (ii) When the person submitting the information subjectively believes that there is a high probability that the information submitted is incomplete or inaccurate in some respect material to the NRC but takes deliberate action to remain ignorant of the incompleteness or inaccuracy of that information. * * * * * (c) For the purposes of paragraph (a)(1) of this section, deliberate misconduct by a person means: PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 8109 (1) An intentional act or omission that the person knows would cause a licensee or applicant to be in violation of any rule, regulation, or order; or any term, condition, or limitation of any license issued by the Commission; (2) An intentional act or omission that the person knows constitutes a violation of a requirement, procedure, instruction, contract, purchase order, or policy of a licensee, applicant, contractor, or subcontractor; or (3) An intentional act or omission that the person subjectively believes has a high probability of causing a violation described in paragraph (c)(1) or (c)(2) of this section, but the person takes deliberate action to remain ignorant of whether the act or omission causes or would have caused, if not detected, such a violation. PART 63—DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN A GEOLOGIC REPOSITORY AT YUCCA MOUNTAIN, NEVADA 15. The authority citation for part 63 is revised to read as follows: ■ Authority: Atomic Energy Act secs. 51, 53, 62, 63, 65, 81, 161, 182, 183 (42 U.S.C. 2071, 2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233); Energy Reorganization Act secs. 201, 202, 206, 211 (42 U.S.C. 5841, 5842, 5846, 5851); sec 14, Pub. L. 95–601 (42 U.S.C. 2021a); National Environmental Policy Act sec. 102 (42 U.S.C. 4332); Nuclear Waste Policy Act secs. 114, 117, 121 (42 U.S.C. 10134, 10137, 10141); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 109–58, 119 Stat. 594 (2005). 16. In § 63.11, revise paragraphs (a)(2) and (c) to read as follows: ■ § 63.11 Deliberate misconduct. (a) * * * (2) Deliberately submit to the NRC, a licensee, an applicant, or a licensee’s or applicant’s contractor or subcontractor, information: (i) That the person submitting the information knows to be incomplete or inaccurate in some respect material to the NRC; or (ii) When the person submitting the information subjectively believes that there is a high probability that the information submitted is incomplete or inaccurate in some respect material to the NRC but takes deliberate action to remain ignorant of the incompleteness or inaccuracy of that information. * * * * * (c) For the purposes of paragraph (a)(1) of this section, deliberate misconduct by a person means: (1) An intentional act or omission that the person knows would cause a licensee or applicant to be in violation of any rule, regulation, or order; or any E:\FR\FM\11FEP1.SGM 11FEP1 8110 Federal Register / Vol. 79, No. 28 / Tuesday, February 11, 2014 / Proposed Rules term, condition, or limitation of any license issued by the Commission; (2) An intentional act or omission that the person knows constitutes a violation of a requirement, procedure, instruction, contract, purchase order, or policy of a licensee, applicant, contractor, or subcontractor; or (3) An intentional act or omission that the person subjectively believes has a high probability of causing a violation described in paragraph (c)(1) or (c)(2) of this section, but the person takes deliberate action to remain ignorant of whether the act or omission causes or would have caused, if not detected, such a violation. PART 70—DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL 17. The authority citation for part 70 continues to read as follows: ■ Authority: Atomic Energy Act secs. 51, 53, 161, 182, 183, 193, 223, 234 (42 U.S.C. 2071, 2073, 2201, 2232, 2233, 2243, 2273, 2282, 2297f); secs. 201, 202, 204, 206, 211 (42 U.S.C. 5841, 5842, 5845, 5846, 5851); Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 109–58, 119 Stat. 194 (2005). Sections 70.1(c) and 70.20a(b) also issued under secs. 135, 141, Pub. L. 97–425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 70.21(g) also issued under Atomic Energy Act sec. 122 (42 U.S.C. 2152). Section 70.31 also issued under Atomic Energy Act sec. 57(d) (42 U.S.C. 2077(d)). Sections 70.36 and 70.44 also issued under Atomic Energy Act sec. 184 (42 U.S.C. 2234). Section 70.81 also issued under Atomic Energy Act secs. 186, 187 (42 U.S.C. 2236, 2237). Section 70.82 also issued under Atomic Energy Act sec. 108 (42 U.S.C. 2138). 18. In § 70.10, revise paragraphs (a)(2) and (c) to read as follows: ■ ehiers on DSK2VPTVN1PROD with PROPOSALS-1 § 70.10 Deliberate misconduct. (a) * * * (2) Deliberately submit to the NRC, a licensee, an applicant, or a licensee’s or applicant’s contractor or subcontractor, information: (i) That the person submitting the information knows to be incomplete or inaccurate in some respect material to the NRC; or (ii) When the person submitting the information subjectively believes that there is a high probability that the information submitted is incomplete or inaccurate in some respect material to the NRC but takes deliberate action to remain ignorant of the incompleteness or inaccuracy of that information. * * * * * (c) For the purposes of paragraph (a)(1) of this section, deliberate misconduct by a person means: VerDate Mar<15>2010 14:38 Feb 10, 2014 Jkt 232001 (1) An intentional act or omission that the person knows would cause a licensee or applicant to be in violation of any rule, regulation, or order; or any term, condition, or limitation of any license issued by the Commission; (2) An intentional act or omission that the person knows constitutes a violation of a requirement, procedure, instruction, contract, purchase order, or policy of a licensee, applicant, contractor, or subcontractor; or (3) An intentional act or omission that the person subjectively believes has a high probability of causing a violation described in paragraph (c)(1) or (c)(2) of this section, but the person takes deliberate action to remain ignorant of whether the act or omission causes or would have caused, if not detected, such a violation. PART 71—PACKAGING AND TRANSPORTATION OF RADIOACTIVE MATERIAL 19. The authority citation for part 71 is revised to read as follows: ■ Authority: Atomic Energy Act secs. 53, 57, 62, 63, 81, 161, 182, 183, 223, 234, 1701 (42 U.S.C. 2073, 2077, 2092, 2093, 2111, 2201, 2232, 2233, 2273, 2282, 2297f); Energy Reorganization Act secs. 201, 202, 206, 211 (42 U.S.C. 5841, 5842, 5846, 5851); Nuclear Waste Policy Act sec. 180 (42 U.S.C. 10175); Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 109–58, 119 Stat. 594 (2005). Section 71.97 also issued under sec. 301, Pub. L. 96–295, 94 Stat. 789–790. 20. In § 71.8, revise paragraphs (b)(2) and (d) to read as follows: ■ § 71.8 Deliberate misconduct. * * * * * (b) * * * (2) Deliberately submit to the NRC, a licensee, a certificate holder, a quality assurance program approval holder, an applicant for a license, certificate or quality assurance program approval, or a licensee’s, applicant’s, certificate holder’s, or quality assurance program approval holder’s contractor or subcontractor, information: (i) That the person submitting the information knows to be incomplete or inaccurate in some respect material to the NRC; or (ii) When the person submitting the information subjectively believes that there is a high probability that the information submitted is incomplete or inaccurate in some respect material to the NRC but takes deliberate action to remain ignorant of the incompleteness or inaccuracy of that information. * * * * * PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 (d) For the purposes of paragraph (b)(1) of this section, deliberate misconduct by a person means: (1) An intentional act or omission that the person knows would cause a licensee, certificate holder, quality assurance program approval holder, or applicant for a license, certificate, or quality assurance program approval to be in violation of any rule, regulation, or order; or any term, condition, or limitation of any license or certificate issued by the Commission; (2) An intentional act or omission that the person knows constitutes a violation of a requirement, procedure, instruction, contract, purchase order, or policy of a licensee, certificate holder, quality assurance program approval holder, applicant, or the contractor or subcontractor of any of them; or (3) An intentional act or omission that the person subjectively believes has a high probability of causing a violation described in paragraph (d)(1) or (d)(2) of this section but the person takes deliberate action to remain ignorant of whether the act or omission causes or would have caused, if not detected, such a violation. PART 72—LICENSING REQUIREMENTS FOR THE INDEPENDENT STORAGE OF SPENT NUCLEAR FUEL, HIGH-LEVEL RADIOACTIVE WASTE, AND REACTOR-RELATED GREATER THAN CLASS C WASTE 21. The authority citation for part 72 is revised to read as follows: ■ Authority: Atomic Energy Act secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183, 184, 186, 187, 189, 223, 234, 274 (42 U.S.C. 2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233, 2234, 2236, 2237, 2238, 2273, 2282, 2021); Energy Reorganization Act sec. 201, 202, 206, 211 (42 U.S.C. 5841, 5842, 5846, 5851); National Environmental Policy Act sec. 102 (42 U.S.C. 4332); Nuclear Waste Policy Act secs. 131, 132, 133, 135, 137, 141 148 (42 U.S.C. 10151, 10152, 10153, 10155, 10157, 10161, 10168); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 109–58, 119 Stat. 549 (2005). Section 72.44(g) also issued under secs. Nuclear Waste Policy Act 142(b) and 148(c), (d) (42 U.S.C. 10162(b), 10168(c), (d)). Section 72.46 also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239); Nuclear Waste Policy Act sec. 134 (42 U.S.C. 10154). Section 72.96(d) also issued under Nuclear Waste Policy Act sec. 145(g) (42 U.S.C. 10165(g)). Subpart J also issued under Nuclear Waste Policy Act secs. 117(a), 141(h) (42 U.S.C. 10137(a), 10161(h)). Subpart K is also issued under sec. 218(a) (42 U.S.C. 10198). 22. In § 72.12, revise paragraphs (a)(2) and (c) to read as follows: ■ E:\FR\FM\11FEP1.SGM 11FEP1 Federal Register / Vol. 79, No. 28 / Tuesday, February 11, 2014 / Proposed Rules § 72.12 Deliberate misconduct. (a) * * * (2) Deliberately submit to the NRC, a licensee, a certificate holder, an applicant for a license or certificate, or a licensee’s, applicant’s, or certificate holder’s contractor or subcontractor, information: (i) That the person submitting the information knows to be incomplete or inaccurate in some respect material to the NRC; or (ii) When the person submitting the information subjectively believes that there is a high probability that the information submitted is incomplete or inaccurate in some respect material to the NRC but takes deliberate action to remain ignorant of the incompleteness or inaccuracy of that information. * * * * * (c) For the purposes of paragraph (a)(1) of this section, deliberate misconduct by a person means: (1) An intentional act or omission that the person knows would cause a licensee, certificate holder or applicant for a license or certificate to be in violation of any rule, regulation, or order; or any term, condition, or limitation of any license or certificate issued by the Commission; (2) An intentional act or omission that the person knows constitutes a violation of a requirement, procedure, instruction, contract, purchase order, or policy of a licensee, certificate holder, applicant, contractor, or subcontractor; or (3) An intentional act or omission that the person subjectively believes has a high probability of causing a violation described in paragraph (c)(1) or (c)(2) of this section, but the person takes deliberate action to remain ignorant of whether the act or omission causes or would have caused, if not detected, such a violation. PART 76—CERTIFICATION OF GASEOUS DIFFUSION PLANTS 23. The authority citation for part 76 is revised to read as follows: ■ ehiers on DSK2VPTVN1PROD with PROPOSALS-1 Authority: Atomic Energy Act secs. 161, 223, 234, 1312, 1701 (42 U.S.C. 2201, 2273, 2282, 2297b-11, 2297f); Energy Reorganization Act secs. 201, 204, 206, 211 (42 U.S.C. 5841, 5842, 5845, 5846, 5851); Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 109–58, 119 Stat. 549 (2005). Section 76.22 also issued under Atomic Energy Act sec. 193(f) (42 U.S.C. 2243(f)). Section 76.35(j) also issued under Atomic Energy Act sec. 122 (42 U.S.C. 2152). 24. In § 76.10, revise paragraphs (a)(2) and (c) to read as follows: ■ § 76.10 Deliberate misconduct. (a) * * * VerDate Mar<15>2010 14:38 Feb 10, 2014 Jkt 232001 (2) Deliberately submit to the NRC, the Corporation, or its contractor or subcontractor, information: (i) That the person submitting the information knows to be incomplete or inaccurate in some respect material to the NRC; or (ii) When the person submitting the information subjectively believes that there is a high probability that the information submitted is incomplete or inaccurate in some respect material to the NRC but takes deliberate action to remain ignorant of the incompleteness or inaccuracy of that information. * * * * * (c) For the purposes of paragraph (a)(1) of this section, deliberate misconduct by a person means: (1) An intentional act or omission that the person knows would cause the Corporation to be in violation of any rule, regulation, or order, or any term, condition, or limitation of a certificate or approved compliance plan issued by the Director; (2) An intentional act or omission that the person knows constitutes a violation of a requirement, procedure, instruction, contract, purchase order, or policy of the Corporation, contractor, or subcontractor; or (3) An intentional act or omission that the person subjectively believes has a high probability of causing a violation described in paragraph (c)(1) or (c)(2) of this section, but the person takes deliberate action to remain ignorant of whether the act or omission causes or would have caused, if not detected, such a violation. PART 110—EXPORT AND IMPORT OF NUCLEAR EQUIPMENT AND MATERIAL 25. The authority citation for part 110 is revised to read as follows: ■ Authority: Atomic Energy Act secs. 51, 53, 54, 57, 63, 64, 65, 81, 82, 103, 104, 109, 111, 126, 127, 128, 129, 161, 181, 182, 183, 187, 189, 223, 234 (42 U.S.C. 2071, 2073, 2074, 2077, 2092–2095, 2111, 2112, 2133, 2134, 2139, 2139a, 2141, 2154–2158, 2201, 2231– 2233, 2237, 2239, 2273, 2282); Energy Reorganization Act sec. 201 (42 U.S.C. 5841; Solar, Wind, Waste, and Geothermal Power Act of 1990 sec. 5 (42 U.S.C. 2243); Government Paperwork Elimination Act sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of 2005, 119 Stat. 594. Sections 110.1(b)(2) and 110.1(b)(3) also issued under 22 U.S.C. 2403. Section 110.11 also issued under Atomic Energy Act secs. 54(c), 57(d), 122 (42 U.S.C. 2074, 2152). Section 110.50(b)(3) also issued under Atomic Energy Act sec. 123 (42 U.S.C. 2153). Section 110.51 also issued under Atomic Energy Act sec. 184 (42 U.S.C. 2234). Section 110.52 also issued under Atomic Energy Act PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 8111 sec. 186 (42 U.S.C. 2236). Sections 110.80– 110.113 also issued under 5 U.S.C. 552, 554. Sections 110.130–110.135 also issued under 5 U.S.C. 553. Sections 110.2 and 110.42(a)(9) also issued under Intelligence Authorization Act sec. 903 (42 U.S.C. 2151 et seq.). 26. In § 110.7b, revise paragraphs (a)(2) and (c) to read as follows: ■ § 110.7b Deliberate misconduct. (a) * * * (2) Deliberately submit to the NRC, a licensee, an applicant, or a licensee’s or applicant’s contractor or subcontractor, information: (i) That the person submitting the information knows to be incomplete or inaccurate in some respect material to the NRC; or (ii) When the person submitting the information subjectively believes that there is a high probability that the information submitted is incomplete or inaccurate in some respect material to the NRC but takes deliberate action to remain ignorant of the incompleteness or inaccuracy of that information. * * * * * (c) For the purposes of paragraph (a)(1) of this section, deliberate misconduct by a person means: (1) An intentional act or omission that the person knows would cause a licensee or applicant to be in violation of any rule, regulation, or order; or any term, condition, or limitation of any license issued by the Commission; (2) An intentional act or omission that the person knows constitutes a violation of a requirement, procedure, instruction, contract, purchase order, or policy of a licensee, applicant, contractor, or subcontractor; or (3) An intentional act or omission that the person subjectively believes has a high probability of causing a violation described in paragraph (c)(1) or (c)(2) of this section, but the person takes deliberate action to remain ignorant of whether the act or omission causes or would have caused, if not detected, such a violation. PART 150—EXEMPTIONS AND CONTINUED REGULATORY AUTHORITY IN AGREEMENT STATES AND IN OFFSHORE WATERS UNDER SECTION 274 27. The authority citation for part 150 is revised to read as follows: ■ Authority: Atomic Energy Act secs. 161, 181, 223, 234 (42 U.S.C. 2201, 2021, 2231, 2273, 2282); Energy Reorganization Act sec. 201 (42 U.S.C. 5841); Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 109–58, 119 Stat. 594 (2005). Sections 150.3, 150.15, 150.15a, 150.31, 150.32 also issued under Atomic Energy Act E:\FR\FM\11FEP1.SGM 11FEP1 8112 Federal Register / Vol. 79, No. 28 / Tuesday, February 11, 2014 / Proposed Rules secs. 11e(2), 81, 83, 84 (42 U.S.C. 2014e(2), 2111, 2113, 2114). Section 150.14 also issued under Atomic Energy Act sec. 53 (42 U.S.C. 2073). Section 150.15 also issued under Nuclear Waste Policy Act sec. 135 (42 U.S.C. 10155). Section 150.17a also issued under Atomic Energy Act sec. 122 (42 U.S.C. 2152). Section 150.30 also issued under Atomic Energy Act sec. 234 (42 U.S.C. 2282). 28. In § 150.2, revise the last sentence to read as follows: ■ § 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 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 §§ 30.10, 40.10, 61.9b, 70.10, and 71.8. Dated at Rockville, Maryland, this 30th day of January 2014. For the Nuclear Regulatory Commission. Annette L. Vietti-Cook, Secretary of the Commission. [FR Doc. 2014–02570 Filed 2–10–14; 8:45 am] BILLING CODE 7590–01–P DEPARTMENT OF ENERGY 10 CFR Parts 429 and 431 [Docket No. EERE–2013–BT–TP–0002] RIN 1904–AC93 Energy Conservation Program: Test Procedures for Commercial Clothes Washers Office of Energy Efficiency and Renewable Energy, Department of Energy. ACTION: Notice of proposed rulemaking. AGENCY: The U.S. Department of Energy (DOE) proposes to revise its test procedures and certification reporting requirements for commercial clothes washers established under the Energy Policy and Conservation Act. The proposed amendments provide numerical equations for translating modified energy factor and water factor values as measured using DOE’s new clothes washer test procedure into their equivalent values as measured using the current test procedure. The proposed amendments also clarify the dates for which the current and new test procedures can be used to determine ehiers on DSK2VPTVN1PROD with PROPOSALS-1 SUMMARY: VerDate Mar<15>2010 14:38 Feb 10, 2014 Jkt 232001 compliance with existing energy conservation standards and any future revised energy conservation standards for commercial clothes washers. DATES: DOE will accept comments, data, and information regarding this notice of proposed rulemaking (NOPR) no later than April 28, 2014 See section V, ‘‘Public Participation,’’ for details. DOE will hold a public meeting on this proposed test procedure if one is requested by February 26, 2014. ADDRESSES: Any comments submitted must identify the NOPR for Test Procedures for Commercial Clothes Washers, and provide docket number EERE–2013–BT–TP–0002 and/or regulatory information number (RIN) number 1904–AC93. Comments may be submitted using any of the following methods: 1. Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments. 2. Email: CCW2013TP0002@ ee.doe.gov Include the docket number and/or RIN in the subject line of the message. 3. Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, Mailstop EE–2J, 1000 Independence Avenue SW., Washington, DC 20585–0121. If possible, please submit all items on a CD. It is not necessary to include printed copies. 4. Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, 950 L’Enfant Plaza SW., Suite 600, Washington, DC 20024. Telephone: (202) 586–2945. If possible, please submit all items on a CD. It is not necessary to include printed copies. For detailed instructions on submitting comments and additional information on the rulemaking process, see section V of this document (Public Participation). Docket: The docket, which includes Federal Register notices, comments, and other supporting documents/ materials, is available for review at regulations.gov. All documents in the docket are listed in the regulations.gov index. However, some documents listed in the index, such as those containing information that is exempt from public disclosure, may not be publicly available. For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting, contact Ms. Brenda Edwards at (202) 586–2945 or by email: Brenda.Edwards@ee.doe.gov. FOR FURTHER INFORMATION CONTACT: Ashley Armstrong, U.S. Department of PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE–2J, 1000 Independence Avenue SW., Washington, DC 20585–0121. Telephone: (202) 586–6590. Email: commercial_clothes_washers@ ee.doe.gov. Elizabeth Kohl, U.S. Department of Energy, Office of the General Counsel, GC–71, 1000 Independence Avenue SW., Washington, DC 20585–0121. Telephone: (202) 586–7796. Email: Elizabeth.Kohl@hq.doe.gov. SUPPLEMENTARY INFORMATION: Table of Contents I. Authority and Background II. Summary of the Notice of Proposed Rulemaking III. Discussion A. Top-Loading Translation Equations B. Front-Loading Translation Equations C. Responses to Comments Received from Standards Rulemaking 1. Use of Appendix J2 and Translation Equations 2. Separate Provisions for Commercial Clothes Washers IV. Procedural Issues and Regulatory Review A. Review Under Executive Order 12866 B. Review Under the Regulatory Flexibility Act C. Review Under the Paperwork Reduction Act of 1995 D. Review Under the National Environmental Policy Act of 1969 E. Review Under Executive Order 13132 F. Review Under Executive Order 12988 G. Review Under the Unfunded Mandates Reform Act of 1995 H. Review Under the Treasury and General Government Appropriations Act, 1999 I. Review Under Executive Order 12630 J. Review Under Treasury and General Government Appropriations Act, 2001 K. Review Under Executive Order 13211 L. Review Under Section 32 of the Federal Energy Administration Act of 1974 V. Public Participation VI. Approval of the Office of the Secretary I. Authority and Background Title III of the Energy Policy and Conservation Act of 1975 (42 U.S.C. 6291, et seq; ‘‘EPCA’’), Public Law 94– 163, sets forth a variety of provisions designed to improve energy efficiency. (All references to EPCA refer to the statute as amended through the American Energy Manufacturing Technical Corrections Act, Pub. L. 112– 210 (Dec. 18, 2012)). Part C of title III, which for editorial reasons was redesignated as Part A–1 upon incorporation into the U.S. Code (42 U.S.C. 6311–6317, as codified), establishes the ‘‘Energy Conservation Program for Certain Industrial Equipment.’’ The program includes commercial clothes washers, the subject E:\FR\FM\11FEP1.SGM 11FEP1

Agencies

NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 79, Number 28 (Tuesday, February 11, 2014)]
[Proposed Rules]
[Pages 8097-8112]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-02570]

========================================================================
Proposed Rules
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

========================================================================

Federal Register / Vol. 79, No. 28 / Tuesday, February 11, 2014 /
Proposed Rules

[[Page 8097]]

NUCLEAR REGULATORY COMMISSION

10 CFR Parts 2, 30, 40, 50, 52, 60, 61, 63, 70, 71, 72, 76, 110,
and 150

[NRC-2013-0132]
RIN 3150-AJ27

Deliberate Misconduct Rule and Hearings on Challenges to the
Immediate Effectiveness of Orders

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is proposing to
amend its regulations concerning deliberate misconduct by licensees and
other persons otherwise subject to the NRC's jurisdiction (known as the
``Deliberate Misconduct Rule'') and its regulations concerning
challenges to immediately effective orders issued by the NRC. This
proposed rule would incorporate the concept of ``deliberate ignorance''
as an additional basis on which to take enforcement action against
persons who violate any of the NRC's Deliberate Misconduct Rule
provisions. The NRC is also proposing to amend its regulations
regarding challenges to the immediate effectiveness of NRC enforcement
orders to clarify that the NRC staff has the burden of persuasion in
showing that adequate evidence supports the grounds for the order and
that immediate effectiveness is warranted and to clarify the authority
of the NRC's presiding officer to order live testimony in resolving
these challenges.

DATES: Submit comments by May 12, 2014. Comments received after this
date will be considered if it is practical to do so. However, the NRC
is able to ensure consideration only of comments received on or before
this date.

ADDRESSES: You may submit comments by any of the following methods
(unless this document describes a different method for submitting
comments on a specific subject):
Federal rulemaking Web site: Go to https://www.regulations.gov and search for Docket ID NRC-2013-0132. Address
questions about NRC dockets to Carol Gallagher; telephone: 301-287-
3422; email: Carol.Gallagher@nrc.gov. For technical questions contact
the individual listed in the FOR FURTHER INFORMATION CONTACT section of
this proposed rule.
Email comments to: Rulemaking.Comments@nrc.gov. If you do
not receive an automatic email reply confirming receipt, then contact
us at 301-415-1677.
Fax comments to: Secretary, U.S. Nuclear Regulatory
Commission at 301-415-1101.
Mail comments to: Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, ATTN: Rulemakings and
Adjudications Staff.
Hand deliver comments to: 11555 Rockville Pike, Rockville,
Maryland 20852, between 7:30 a.m. and 4:15 p.m. (Eastern Time) Federal
workdays; telephone: 301-415-1677.
For additional direction on accessing information and submitting
comments, see ``Accessing Information and Submitting Comments'' in the
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Andrew Pessin, Office of the General
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,
telephone: 301-415-1062, email: Andrew.Pessin@nrc.gov.

SUPPLEMENTARY INFORMATION:

I. Accessing Information and Submitting Comments

A. Accessing Information

Please refer to Docket ID NRC-2013-0132 when contacting the NRC
about the availability of information for this proposed rule. You may
access publicly available information related to this proposed rule by
any of the following methods:
Federal Rulemaking Web site: Go to https://www.regulations.gov and search for Docket ID NRC-2013-0132.
NRC's Agencywide Documents Access and Management System
(ADAMS): You may access publicly available documents online in the NRC
Library at https://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 pdr.resource@nrc.gov. The ADAMS accession number
for each document referenced in this document (if that document is
available in ADAMS) is provided the first time that a document is
referenced.
NRC's Public Document Room: You may examine and purchase
copies of public documents at the NRC's PDR, Room O1-F21, One White
Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

B. Submitting Comments

Please include Docket ID NRC-2013-0132 in the subject line of your
comment submission, in order to ensure that the NRC is able to make
your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact
information in comment submissions that you do not want to be publicly
disclosed in your comment submission. The NRC will post all comment
submissions at https://www.regulations.gov as well as enter the comment
submissions into ADAMS, and the NRC does not routinely edit comment
submissions to remove identifying or contact information.
If you are requesting or aggregating comments from other persons
for submission to the NRC, then you should inform those persons not to
include identifying or contact information that they do not want to be
publicly disclosed in their comment submission. Your request should
state that the NRC does not routinely edit comment submissions to
remove such information before making the comment submissions available
to the public or entering the comment into ADAMS.

II. Background

The NRC promulgated the Deliberate Misconduct Rule on August 15,
1991.\1\ The Deliberate Misconduct Rule appears in several sections of
Title 10 of the Code of Federal Regulations (10 CFR).\2\ As explained
in the statement of

[[Page 8098]]

considerations \3\ for the 1991 rulemaking, the purpose of the
Deliberate Misconduct Rule was to put both licensed and unlicensed
persons on notice that they may be subject to enforcement action for
deliberate misconduct that ``causes or, but for detection, would have
caused, a [NRC] licensee to be in violation of any rule, regulation, or
order, or any term, condition, or limitation of any license, issued by
the Commission.'' \4\ In this regard, the Deliberate Misconduct Rule
also included ``individual liability for deliberate submission of
incomplete or inaccurate information to the NRC, a licensee,
contractor, or subcontractor.'' \5\ Therefore, the Deliberate
Misconduct Rule expressly extended the NRC's civil penalty enforcement
authority (10 CFR Part 2, Subpart B) to those individuals who, although
unlicensed by the NRC, are employed by an NRC licensee, or are employed
by a contractor or subcontractor of an NRC licensee or who otherwise
``knowingly provide goods or services that relate to a licensee's
activities subject to NRC regulation.'' \6\
---------------------------------------------------------------------------

\1\ 56 FR 40664.
\2\ The Deliberate Misconduct Rule appears in 10 CFR 30.10,
40.10, 50.5, 52.4, 60.11, 61.9b, 63.11, 70.10, 71.8, 72.12, 76.10,
and 110.7b.
\3\ The term ``statement of considerations'' refers to the
section of the Federal Register notice of a proposed rule or final
rule that sets forth the NRC's rationale and justification for the
rule.
\4\ 56 FR 40665 (alteration added).
\5\ Id.
\6\ 56 FR 40679.
---------------------------------------------------------------------------

This proposed rule would amend the Deliberate Misconduct Rule to
address an issue that arose during parallel NRC civil and U.S.
Department of Justice (DOJ) criminal proceedings involving the same
individual and the same set of facts. Specifically, the proposed rule
would amend the Deliberate Misconduct Rule to incorporate the concept
of ``deliberate ignorance'' as an additional basis on which to take
enforcement action against persons who violate the Deliberate
Misconduct Rule. Under federal criminal law, an individual acts with
``deliberate ignorance'' when that individual attempts to avoid
criminal prosecution and conviction by deliberately remaining ignorant
of critical facts, which if clearly known by that individual, would
provide a basis to criminally prosecute that individual or otherwise
subject the individual to an agency civil penalty enforcement
proceeding.\7\
---------------------------------------------------------------------------

\7\ Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060,
2068-69 (2011) (stating that defendants cannot avoid criminal
liability by ``deliberately shielding themselves from clear evidence
of critical facts that are strongly suggested by the
circumstances''); Id. at 2069 citing United States v. Jewell, 532
F.2d 697, 700 (9th Cir. 1976) (en banc) (``[i]t is also said that
persons who know enough to blind themselves to direct proof of
critical facts in effect have actual knowledge of those facts'');
United States v. Gullet, 713 F.2d 1203, 1212 (6th Cir. 1983)
(stating that deliberate ignorance applies when a criminal defendant
``deliberately clos[es] his eyes to the obvious risk that he is
engaging in unlawful conduct'') (alteration added).
---------------------------------------------------------------------------

In addition, this proposed rule would amend 10 CFR 2.202, the NRC's
regulation governing issuance of orders, including those orders made
immediately effective. Presently, 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 proposed rule would amend the regulations governing
challenges to the immediate effectiveness of an order by clarifying:
(1) Which party bears the burden of proof required 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.

Geisen Proceeding

The deficiencies in the Deliberate Misconduct Rule became apparent
with the parallel NRC enforcement proceeding and the DOJ criminal
prosecution of David Geisen. On January 4, 2006, the NRC issued an
immediately effective order to Mr. Geisen, a former employee at the
Davis-Besse Nuclear Power Station, barring him from employment in the
nuclear industry for 5 years.\8\ The order 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 DOJ later obtained a grand jury indictment against Mr.
Geisen on charges under 10 U.S.C. 1001 of submitting false statements
to the NRC.\9\ 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. Mr. Geisen was convicted on a general verdict; that is, the
jury found Mr. Geisen guilty without making findings in regard to
either of the prosecution's theories (i.e., whether Mr. Geisen knew
that the statements were false or whether he acted with deliberate
ignorance). The United States Court of Appeals for the Sixth Circuit
upheld Mr. Geisen's conviction on appeal.\10\ Because the Geisen jury
issued a general verdict, it is unknown under which of the alternative
theories the jury convicted him.
---------------------------------------------------------------------------

\8\ David Geisen, LBP-09-24, 70 NRC 676 (2009), aff'd, CLI-10-
23, 72 NRC 210 (2010).
\9\ United States v. Geisen, 2008 WL 6124567 (N.D. Ohio May 2,
2008).
\10\ United States v. Geisen, 612 F.3d 471, 485-86 (6th Cir.
2010), cert. denied, 131 S. Ct. 1813 (2011).
---------------------------------------------------------------------------

In the parallel NRC enforcement proceeding, Mr. Geisen's criminal
conviction prompted the NRC's Atomic Safety and Licensing Board (the
ASLB or the Board) to consider whether Mr. Geisen was collaterally
estopped \11\ from denying the same wrongdoing in the NRC
proceeding.\12\ A Board majority declined to apply collateral estoppel
in the NRC proceeding due to uncertainty over whether the general jury
verdict in the criminal proceeding was based on ``actual knowledge'' or
``deliberate ignorance.'' \13\ In this regard, both the Board and the
Commission, on appeal, found that the NRC's Deliberate Misconduct Rule
did not include deliberate ignorance.\14\
---------------------------------------------------------------------------

\11\ 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).
\12\ Geisen, LBP-09-24, 70 NRC at 709-26.
\13\ Id. at 715-26.
\14\ 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.'' Id. 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).
---------------------------------------------------------------------------

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 NRC could apply its identical actual knowledge standard
based on the same facts in the criminal case.\15\ Conversely, if the
verdict was based on deliberate ignorance, the NRC could not apply a
deliberate ignorance standard because the NRC did not have such a
standard to apply. Therefore, the Commission determined that the
potential that the jury convicted on a deliberate ignorance standard
for which the NRC had no

[[Page 8099]]

corresponding standard to apply prohibited the NRC from applying
collateral estoppel in its enforcement proceeding against Mr. Geisen.
---------------------------------------------------------------------------

\15\ Geisen, CLI-10-23, 72 NRC at 249.
---------------------------------------------------------------------------

The NRC enforcement proceeding ended in Mr. Geisen's favor,
creating an anomaly: Mr. Geisen was convicted in federal court under a
``beyond a reasonable doubt'' criminal standard but exonerated before
the NRC on a less demanding ``preponderance of the evidence'' standard.
The Commission's Geisen decision made clear that the Deliberate
Misconduct Rule, as presently written, does not provide for an
enforcement action on the basis of deliberate ignorance.

Post-Geisen Proceeding Developments

In Staff Requirements Memoranda-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) 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 previously described review. In response, in 2012, the
Commission directed OGC to develop a proposed rule that would
incorporate the federal standard of ``deliberate ignorance'' 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 NRC is proposing this rule so that NRC enforcement proceedings
and DOJ criminal prosecutions that involve similar violations are
carried out in a consistent manner. The proposed rule would incorporate
the concept of ``deliberate ignorance'' into the Deliberate Misconduct
Rule. The NRC is also proposing this rule to clarify two aspects of the
NRC's regulations regarding challenges to the immediate effectiveness
of orders: (1) The burden of proof and (2) the authority of the
presiding officer to order live testimony in resolving such a
challenge. The burden of proof has been defined as meaning the burden
of persuasion, which is the need to establish the validity of a claim
or overcome opposing evidence.\16\ A related concept, sometimes
included within the burden of proof, is the burden of going forward
with evidence, which is the need to produce enough evidence to make a
case.\17\
---------------------------------------------------------------------------

\16\ Director, OWCP Department of Labor v. Greenwich Collieries,
512 U.S. 267, 272-81, 114 S. Ct. 2251, 2255-59 (1994).
\17\ Id.
---------------------------------------------------------------------------

The NRC has researched the definition of deliberate ignorance used
by the Supreme Court and federal circuit courts to inform the NRC's
definition of this term. In drafting the proposed amendments to 10 CFR
2.202, the NRC reviewed the way in which the ASLB has interpreted the
burden of proof in hearings on challenges to the immediate
effectiveness of an order. The NRC also reviewed the NRC's 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.

Deliberate Misconduct Rule

The NRC's predecessor agency, the Atomic Energy Commission,
established the criteria used to conduct enforcement activities in
1972.\18\ Early guidance did not discuss ``willfulness'' and instead
advised licensees that a broad range of enforcement actions could be
applied to a range of violations. In 1979, the Commission directed the
NRC staff to prepare a comprehensive Enforcement Policy that applied to
applicants and licensees but not to employees of applicants and
licensees. The first version of the NRC Enforcement Policy, adopted in
1982, stated that the Severity Level or significance of a violation may
be increased upon a finding of willfulness.\19\ The NRC Enforcement
Policy defined ``willfulness'' as including ``a spectrum of violations
ranging from deliberate intent to violate or falsify to and including
careless disregard for requirements.'' \20\ Therefore, under the
original Enforcement Policy, the NRC could have found that an applicant
or licensee violated a rule, order, or license condition without regard
to whether the applicant or licensee intended to commit, or knew that
it was committing, a violation, but the Severity Level or significance
depended, in part, on whether the violation was willful. Under the
current NRC Enforcement Policy, willfulness remains a factor in
assessing the Severity Level or significance of a violation (NRC
Enforcement Policy, dated January 28, 2013, ADAMS Accession No.
ML12340A295).
---------------------------------------------------------------------------

\18\ 37 FR 21962; October 17, 1972.
\19\ 47 FR 9987; March 9, 1982.
\20\ Id. at 9990.
---------------------------------------------------------------------------

In 1990, the Commission published the proposed Deliberate
Misconduct Rule to address willful misconduct by persons not licensed
by the NRC.\21\ Until that time, a licensee was able to dismiss an
employee for willful misconduct ``either by its own decision or because
the NRC formally order[ed] removal of the employee from licensed
activity.'' \22\ In the 1990 proposed Deliberate Misconduct Rule's
statement of considerations, the Commission stated its concern that
such an employee, following dismissal, could seek other nuclear-related
employment without the NRC's knowledge of this employment or the new
employer's knowledge of the employee's past willful misconduct.\23\ The
Commission also noted that ``willful acts of licensees' contractors,
vendors, or their employees have caused licensees to be in violation of
Commission requirements.'' \24\ The purpose of the 1990 proposed
Deliberate Misconduct Rule was to address unlicensed persons who are
engaged in licensed activities and whose willful misconduct ``causes a
licensee to be in violation of a Commission requirement or places in
question the NRC's reasonable assurance of adequate protection of the
public health and safety.'' \25\
---------------------------------------------------------------------------

\21\ 55 FR 12374; April 3, 1990.
\22\ Id. at 12374 (alteration added).
\23\ Id.
\24\ Id.
\25\ Id.
---------------------------------------------------------------------------

Under the 1990 proposed Deliberate Misconduct Rule, an act was
deemed willful if a person knew that the conduct was prohibited or
exhibited a careless disregard for whether the conduct was prohibited.
The 1990 proposed Deliberate Misconduct Rule described the term
``careless disregard'' as behavior that ``connotes a reckless disregard
or callous . . . indifference toward one's responsibilities or the
consequences of one's actions.'' \26\ In the statement of
considerations for the 1990 proposed Deliberate Misconduct Rule, the
Commission noted that the rule would not be applied against
``conscientious people'' who simply acted negligently.\27\
---------------------------------------------------------------------------

\26\ Id.
\27\ Id. at 12377.
---------------------------------------------------------------------------

The Commission published the Deliberate Misconduct Rule as a final
rule on August 15, 1991 (``1991 final Deliberate Misconduct
Rule'').\28\ The 1991 final Deliberate Misconduct Rule promulgated the
following provisions: 10 CFR 30.10, 40.10, 50.5, 60.11, 61.9b,

[[Page 8100]]

70.10, 72.12, and 110.7b. These Deliberate Misconduct Rule provisions
applied to NRC licensees, any employee of an NRC licensee, and any
contractor (including a supplier or consultant), subcontractor, or any
employee of a contractor or subcontractor, of any licensee.\29\ These
Deliberate Misconduct Rule provisions placed licensed and unlicensed
persons on notice that they may be subject to enforcement action for
deliberate misconduct that causes or would have caused, if not
detected, a licensee to be in violation of any of the Commission's
requirements, or for deliberately providing to the NRC, a licensee, or
contractor information that is incomplete or inaccurate in some respect
material to the NRC.
---------------------------------------------------------------------------

\28\ 56 FR 40664.
\29\ In a 1998 rulemaking, the Commission expanded the scope of
the Deliberate Misconduct Rule to additional categories of persons,
including applicants for NRC licenses (63 FR 1890; January 13,
1998). The 1998 rule also added new Deliberate Misconduct Rule
provisions to 10 CFR Parts 52 and 71 (10 CFR 52.9 and 10 CFR 71.11).
The 10 CFR Part 52 and the 10 CFR Part 71 Deliberate Misconduct Rule
provisions were later redesignated as 10 CFR 52.4 and 10 CFR 71.8,
respectively.
---------------------------------------------------------------------------

In addition, the 1991 final Deliberate Misconduct Rule made
conforming changes to the corresponding ``Scope'' provisions (i.e., 10
CFR 30.1, 40.2, 50.1, 60.1, 61.1, 70.2, 72.2, and 110.1) to provide
express notice to all applicable persons that they would be subject to
the Deliberate Misconduct Rule. Similarly, the 1991 final Deliberate
Misconduct Rule amended 10 CFR 150.2, ``Scope,'' to provide notice to
Agreement State licensees conducting activities under reciprocity in
areas of NRC jurisdiction that they are subject to the applicable
Deliberate Misconduct Rule provisions (10 CFR 30.10, 40.10, or 70.10).
The statement of considerations for the 1991 final Deliberate
Misconduct Rule included the NRC's responses to public comments
received on the 1990 proposed Deliberate Misconduct Rule. One group of
comments raised the concern that including ``careless disregard'' as a
type of willful misconduct would be a disincentive to nuclear-related
employment.\30\ In response to these comments, the Commission modified
the rule to only apply to a person who engages in deliberate misconduct
or who deliberately submits incomplete or inaccurate information,
narrowing the scope of the Deliberate Misconduct Rule.\31\ The
Commission predicted that this narrowed scope of the rule would ``not
differ significantly from the range of actions that might subject the
individual to criminal prosecution.'' \32\ Yet, the Geisen enforcement
proceeding and parallel criminal prosecution, previously described,
indicate that the scope of the current Deliberate Misconduct Rule
differs from the range of actions subject to criminal prosecution.
---------------------------------------------------------------------------

\30\ 56 FR 40675.
\31\ Id.
\32\ Id.
---------------------------------------------------------------------------

Immediately Effective Orders

The Commission's procedures to initiate formal enforcement action
are found in the regulations set forth in 10 CFR Part 2, Subpart B.
These regulations include 10 CFR 2.202, ``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.\33\ The Commission's statutory authority to issue an
order is Section 161 of the AEA.\34\ The NRC may issue orders in lieu
of or in addition to civil penalties (Section 2.3.5 of the NRC
Enforcement Policy (2013)). When the NRC determines that the conduct
that caused a violation was willful or when the Commission determines
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 a prior opportunity for a hearing
before the order goes into effect.\35\ 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.
---------------------------------------------------------------------------

\33\ 10 CFR 2.202(a).
\34\ 42 U.S.C. 2201.
\35\ 10 CFR 2.202(b).
---------------------------------------------------------------------------

On the same day that the Commission published the 1990 proposed
Deliberate Misconduct Rule, it also published a related proposed rule
that would expressly allow the Commission to issue orders to unlicensed
persons, ``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.'' \36\ This proposed rule concerned amendments to 10 CFR
2.202 and other 10 CFR Part 2 provisions.\37\ At the time of the April
1990 proposed rule, 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 April 1990
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].'' \38\ These proposed changes were adopted, with some
modifications, in the 1991 final Deliberate Misconduct Rule.\39\ In
this regard, the 1991 final Deliberate Misconduct Rule amended 10 CFR
2.202 and other provisions of 10 CFR Part 2 (i.e., 10 CFR 2.1, 2.201,
2.204, 2.700, and Appendix C to 10 CFR Part 2), which authorized the
issuance of an order to unlicensed persons otherwise subject to the
NRC's jurisdiction.
---------------------------------------------------------------------------

\36\ 55 FR 12370, 12371; April 3, 1990.
\37\ Id. at 12373-74.
\38\ Id. at 12372.
\39\ 56 FR 40664; August 15, 1991.
---------------------------------------------------------------------------

On July 5, 1990, the Commission published another proposed rule
that would make additional changes to 10 CFR 2.202.\40\ These
additional changes pertained to orders that are made immediately
effective. 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.'' \41\ 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.'' \42\
---------------------------------------------------------------------------

\40\ 55 FR 27645.
\41\ Id.
\42\ Id.
---------------------------------------------------------------------------

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 aspect of an immediately
effective order and that 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.\43\
---------------------------------------------------------------------------

\43\ Id. at 27646.

After receiving public comments on the July 5, 1990, proposed rule, the
Commission published a final rule on

[[Page 8101]]

May 12, 1992.\44\ 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.\45\ Accordingly,
the final rule amended Sec. 2.202(c) ``to allow early challenges to
the immediate effectiveness aspect of immediately effective orders.''
\46\ 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 the defendant's motion to set
aside the immediate effectiveness of the order ``expeditiously'' (10
CFR 2.202(c)(2)(i)), generally within 15 days.\47\ Therefore, the
Commission struck a balance between the governmental interests in
protecting public health and safety and the individual interests in
fairness by requiring that challenges to immediately effective orders
be heard expeditiously.
---------------------------------------------------------------------------

\44\ 57 FR 20194.
\45\ Id. at 20195.
\46\ Id. at 20194.
\47\ Id. at 20196.
---------------------------------------------------------------------------

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, which state that the order and
the NRC staff's determination that it is necessary to make the order
immediately effective are ``not based on adequate evidence, but on mere
suspicion, unfounded allegations, or error.'' \48\ The respondent's
obligation to challenge the order is known as the ``burden of going
forward.'' \49\ 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.'' \50\ In a 2005 matter, the Board
described what the NRC staff must prove and stated:
---------------------------------------------------------------------------

\48\ 10 CFR 2.202(c)(2)(i).
\49\ United Evaluation Services, Inc., LBP-02-13, 55 NRC 351,
354 (2002).
\50\ Id.

The 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 C.F.R. Sec. 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)).\51\

\51\ Safety Light Corp. (Bloomsburg, Pennsylvania Site), LBP-05-
02, 61 NRC 53, 61 (2005) (emphasis in the original).
---------------------------------------------------------------------------

Although Mr. Geisen never challenged the immediate effectiveness
aspect of the Commission's order (which barred him from involvement in
all NRC-licensed activities for 5 years), 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 party subject to the order to
show that the order is based on mere suspicion, unfounded allegations,
or error.\52\ This proposed rule would clarify that the burden of
persuasion is the obligation of the NRC staff, not the party subject to
the order.
---------------------------------------------------------------------------

\52\ 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 C.F.R. Sec. 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 and stated that:

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.\53\

\53\ 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.'' \54\ 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.
---------------------------------------------------------------------------

\54\ 57 FR 20196.
---------------------------------------------------------------------------

III. Discussion of Proposed Changes

Deliberate Misconduct Rule

The NRC proposes to incorporate the concept of deliberate ignorance
into the various Deliberate Misconduct Rule provisions by (1)
prohibiting a person from submitting information where the person
subjectively believes that there is a high probability that the
information is incomplete or inaccurate but takes deliberate actions to
remain ignorant of the incompleteness or inaccuracy of that
information; and (2) extending the Deliberate Misconduct Rule's
definition of ``deliberate misconduct by a person'' to include
situations where the person subjectively believes that there is a high
probability that an act or omission will cause a violation but the
person takes deliberate action to avoid confirming or learning whether
the act or omission will cause a violation.
In drafting this proposed rule, the NRC reviewed definitions of
``deliberate ignorance'' from the Supreme Court and all federal circuit
courts to help develop the most appropriate definition of the term for
the agency. In Global-Tech Appliances, Inc. v. SEB S.A.,\55\ the
Supreme Court found that it is reasonable to infer knowledge from
willful blindness, or deliberate ignorance, as long as deliberate
ignorance or willful blindness is properly defined so as not to be
conflated with recklessness or negligence. In this case, the Supreme
Court recognized that every Court of Appeals, with the exception of the
District of Columbia Circuit, has fully embraced the theory that the
knowledge requirement of criminal statutes is satisfied by either (1)
actual knowledge or (2) constructive knowledge through ``deliberate
ignorance'' or ``willful blindness.'' \56\ The majority of Courts of
Appeals make the equivalency of knowledge and deliberate ignorance or
willful blindness explicit in their pattern or model jury
instructions.\57\

[[Page 8102]]

Other Courts of Appeals have not used pattern or model jury
instructions to define deliberate ignorance or willful blindness, but
these courts have explained in case law that constructive knowledge may
be demonstrated by a showing of deliberate ignorance or willful
blindness.\58\ The District of Columbia Circuit is the only federal
Court of Appeals that has not embraced the theory of deliberate
ignorance or willful blindness. Rather, the District of Columbia
Circuit has expressed concern with the trend to equate deliberate
ignorance and willful blindness with knowledge, stating that ``[i]t
makes obvious sense to say that a person cannot act `knowingly' if she
does not know what is going on. To add that such a person nevertheless
acts `knowingly' if she intentionally does not know what is going on is
something else again.'' \59\
---------------------------------------------------------------------------

\55\ 131 S. Ct. 2060 (2011).
\56\ The term ``willful blindness'' is akin to the term
``deliberate ignorance.'' In Global-Tech Appliances, the Court
stated that ``a willfully blind defendant is one who takes
deliberate actions to avoid confirming a high probability of
wrongdoing and who can almost be said to have actually known the
critical facts.'' Global-Tech Appliances, 131 S. Ct. at 2070-71.
\57\ 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.
\58\ 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.
\59\ United States v. Alston-Graves, 435 F.3d 331, 337 (D.C.
Cir. 2006).
---------------------------------------------------------------------------

The Supreme Court recognized the District of Columbia Circuit's
decision not to embrace fully the deliberate ignorance or willful
blindness standard in Global-Tech Appliances, yet the Supreme Court
still found that it is reasonable to infer knowledge from deliberate
ignorance or willful blindness. The Court stated that ``while the
Courts of Appeals articulate the doctrine of willful blindness in
slightly different ways, all appear to agree on two basic requirements:
(1) the defendant must subjectively believe that there is a high
probability that a fact exists and (2) the defendant must take
deliberate actions to avoid learning of that fact.'' \60\ According to
the Supreme Court, the standard of deliberate ignorance or willful
blindness surpasses the standards of recklessness and negligence such
that a willfully blind defendant ``can almost be said to have actual
knowledge of the critical facts.'' \61\ Therefore, deliberate ignorance
or willful blindness satisfies the knowledge requirement of criminal
statutes.
---------------------------------------------------------------------------

\60\ Global-Tech Appliances, 131 S. Ct. at 2070 (citations
omitted).
\61\ Id. at 2070-71.
---------------------------------------------------------------------------

In this proposed rule, the NRC would amend the Deliberate
Misconduct Rule to incorporate ``deliberate ignorance'' as an
additional basis on which to take enforcement action against persons
who violate the rule. Such an amendment would therefore allow the
Commission and the ASLB to apply collateral estoppel, if appropriate,
in future NRC enforcement proceedings and would avoid anomalies like
the outcome of the Geisen case.

Immediately Effective Orders

This proposed rule would amend 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; whereas the party challenging the
order bears the burden of going forward.\62\ Specifically, the proposed
amendment would state that the NRC staff must show that (1) adequate
evidence supports the grounds for the order and (2) immediate
effectiveness is warranted.\63\
---------------------------------------------------------------------------

\62\ 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).
\63\ 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 proposed rule would further amend 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 proposed rule would allow any party to the
proceeding to file a motion requesting the Board to order live
testimony. The proposed amendments would 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 prejudiced because the immediately
effective order would remain in effect throughout the hearing.
The proposed rule would also amend 10 CFR 2.202(c)(2) to clarify
that the presiding officer shall conduct any live testimony pursuant to
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 proposed rule would amend 10 CFR 2.202(c)(2) by
dividing the paragraph into smaller paragraphs, adding a cross
reference to 10 CFR 2.202(a)(5), which is the regulation that
authorizes the Commission to make an order immediately effective, and
making other minor edits to improve clarity and readability.

Conforming Amendments

The NRC regulation, 10 CFR 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).
When first promulgated on January 13, 1998, the NRC designated the
10 CFR Part 71 Deliberate Misconduct Rule provision as 10 CFR 71.11;
\64\ the NRC made the appropriate conforming amendment to 10 CFR 150.2,
by listing 10 CFR 71.11 as a cross reference.\65\ The NRC later
redesignated the provision as 10 CFR 71.8,\66\ but did not make a
conforming amendment to update the cross-reference in 10 CFR 150.2. The
current 10 CFR 150.2 provision still lists the 10 CFR Part 71
Deliberate Misconduct Rule provision as 10 CFR 71.11.
---------------------------------------------------------------------------

\64\ 63 FR 1899.
\65\ 63 FR 1901.
\66\ 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, and 3790;
January 26, 2004).
---------------------------------------------------------------------------

This proposed rule would make the appropriate conforming changes 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 10 CFR 71.8.

IV. Section-by-Section Analysis

Deliberate Misconduct Rule Changes

This proposed rule would amend the following Deliberate Misconduct
Rule regulations: 10 CFR 30.10, 40.10, 50.5, 52.4, 60.11, 61.9b, 63.11,
70.10, 71.8, 72.12, 76.10, and 110.7b. The language of these
regulations is similar, and in many instances, identical. The
differences in language typically relate to the categories of persons
or other entities being regulated by that regulation. Other than 10 CFR
52.4 and 10 CFR 71.8, the format of these regulations is the same.
The proposed rule would revise paragraph (a)(2) of 10 CFR 30.10,
40.10,

[[Page 8103]]

50.5, 60.11, 61.9b, 63.11, 70.10, 72.12, 76.10, and 110.7b; paragraph
(c)(2) of 10 CFR 52.4; and paragraph (b)(2) of 10 CFR 71.8 to add a
clause that expressly prohibits the deliberate submission of
information to the NRC or other specified entity or individual when the
person submitting the information subjectively believes that there is a
high probability that the information submitted is incomplete or
inaccurate in some respect material to the NRC but takes deliberate
action to remain ignorant of the incompleteness or inaccuracy of that
information. The clause added by the proposed rule would be designated
as paragraph (c)(2)(ii) for 10 CFR 52.4, paragraph (b)(2)(ii) of 10 CFR
71.8, and paragraph (a)(2)(ii) for all other Deliberate Misconduct Rule
regulations. The proposed rule will designate the existing prohibition,
on the deliberate submission of information to the NRC or other
specified entity or individual when the person submitting the
information knows to be incomplete or inaccurate in some respect
material to the NRC, as paragraph (c)(2)(i) for 10 CFR 52.4, paragraph
(b)(2)(i) of 10 CFR 71.8, and paragraph (a)(2)(i) for all other
Deliberate Misconduct Rule regulations.
The proposed rule would revise paragraph (c) of 10 CFR 30.10,
40.10, 50.5, 60.11, 61.9b, 63.11, 70.10, 72.12, 76.10, and 110.7b.
Paragraph (c) defines the term ``deliberate misconduct.'' Specifically,
the proposed rule would revise the introductory text of paragraph (c)
and the language of paragraphs (c)(1)-(2). These revisions are
editorial in nature and support, in terms of readability and clarity,
the addition of a new paragraph (c)(3). New paragraph (c)(3) would
expand the definition of ``deliberate misconduct'' to include an
intentional act or omission that the person subjectively believes has a
high probability of causing a violation described in paragraph (c)(1)
or (c)(2) but the person takes deliberate action to remain ignorant of
whether the act or omission causes or would have caused, if not
detected, such a violation.
Similarly, the proposed rule would revise paragraph (b) of 10 CFR
52.4 and paragraph (d) of 10 CFR 71.8; these paragraphs define the term
``deliberate misconduct'' for those regulations. The proposed rule
would revise the introductory text of paragraph (b) and the language of
paragraphs (b)(i)-(ii) for 10 CFR 52.4, and the introductory text of
paragraph (d) and the language of paragraphs (d)(1)-(2) for 10 CFR
71.8. These revisions are editorial in nature and support, in terms of
readability and clarity, the addition of a new paragraph (b)(iii), for
10 CFR 52.4, and the addition of a new paragraph (d)(3), for 10 CFR
71.8. New paragraphs, 10 CFR 52.4(b)(iii) and 10 CFR 71.8(d)(3), would
expand the definition of ``deliberate misconduct'' to include an
intentional act or omission that the person subjectively believes has a
high probability of causing a violation, but the person takes
deliberate action to remain ignorant of whether the act or omission
causes or would have caused, if not detected, such a violation.

Immediate Effectiveness of Orders Rule Changes

Section 2.202
The proposed rule would make several changes to 10 CFR
2.202(c)(2)(i). The proposed rule would revise 10 CFR 2.202(c)(2)(i) by
dividing it into several smaller paragraphs. The proposed rule would
revise 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 proposed rule would further revise 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 proposed rule would add a new paragraph, 10 CFR
2.202(c)(2)(ii), which would allow any party to file a motion with the
presiding officer requesting that the presiding officer order live
testimony. The proposed new 10 CFR 2.202(c)(2)(ii) would also authorize
the presiding officer, on its own motion, to order live testimony.
The proposed rule would redesignate 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 would concern the staff's response to a motion
challenging the immediate effectiveness of an order. The proposed 10
CFR 2.202(c)(2)(iii) would authorize 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 proposed rule would add 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 proposed rule would make a minor clarifying change to 10 CFR
2.202(c)(2)(ii) and redesignate that paragraph as 10 CFR
2.202(c)(2)(v).
The proposed rule would add a new paragraph, 10 CFR
2.202(c)(2)(vi), which would clarify 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 proposed rule would make 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 redesignate
those sentences as a new paragraph, 10 CFR 2.202(c)(2)(vii).
The proposed rule would make minor clarifying changes to the eighth
sentence of 10 CFR 2.202(c)(2)(i), and would redesignate the sixth,
seventh, and eighth sentences of the 10 CFR 2.202(c)(2)(i) as a new
paragraph, 10 CFR 2.202(c)(2)(viii). These sentences concern the
direction to the presiding officer to uphold the immediate
effectiveness of the order upon finding adequate evidence to support
immediate effectiveness, the final agency action status of an order
upholding immediate effectiveness, and the prompt referral by the
presiding officer of an order setting aside immediate effectiveness to
the Commission and that such order will not be effective pending
further order of the Commission, respectively.

Conforming Amendments to 10 CFR 150.2

This proposed rule would revise the last sentence of 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 10 CFR 71.8.

Administrative Changes to Authority Citations

The authority citations for 10 CFR Parts 2, 30, 60, 61, 63, 71, 72,
76, 110, and 150 would be revised to make editorial changes that are
administrative in nature, including inserting missing parentheses and
punctuation. The proposed revisions would not change the statutory
authority.

V. 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). In complying with this directive, proposed editorial changes
have been made to the various NRC regulations that are the subject of
this proposed

[[Page 8104]]

rule. These editorial changes, if promulgated, will improve the
organization and readability of these regulations. These types of
changes are not discussed further in this document. The NRC requests
comment on the proposed rule with respect to the clarity and
effectiveness of the language used.

VI. 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, private sector, consensus
standards bodies unless using such a standard is inconsistent with
applicable law or is otherwise impractical. In this rule, the NRC is
proposing to amend its Deliberate Misconduct Rule and 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. This action does
not constitute the establishment of a government-unique standard as
defined in Office of Management and Budget (OMB) Circular A-119 (1998).

VII. Environmental Impact: Categorical Exclusion

The NRC has determined that the issuance of this proposed 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 proposed rule is a type of action described in
categorical exclusions 10 CFR 51.22(c)(1)-(2). Therefore, neither an
environmental impact statement nor an environmental assessment has been
prepared for this rulemaking.

VIII. Paperwork Reduction Act Statement

This proposed rule does not contain new or amended information
collection requirements subject to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). Existing requirements were approved by OMB,
approval numbers 3150-0017, -0020, -0011, -0151, -0127, -0135, -0199, -
0009, -0008, -0132, and -0036.

Public Protection Notification

The NRC may not conduct or sponsor, and a person is not required to
respond to, a request for information or an information collection
requirement unless the requesting document displays a currently valid
OMB control number.

IX. Regulatory Analysis

The proposed rule would amend the NRC's Deliberate Misconduct Rule
regulations to incorporate the concept of deliberate ignorance as an
additional basis on which to take enforcement action and to make
clarifications to the NRC regulations governing hearings on challenges
to the immediate effectiveness of orders. In addition, the proposed
rule would make minor, conforming amendments to 10 CFR 150.2. These
proposed amendments, if promulgated, do not result in a cost to the NRC
and do not result in a cost to licensees or others who would comply
with the proposed amendments. These amendments would accrue a benefit
by aligning NRC enforcement proceedings with criminal proceedings,
making NRC enforcement proceedings more efficient. The amendments to
the rule governing hearings on challenges to immediate effectiveness of
orders would not change the existing processes but would merely clarify
the rule. These amendments would not result in a cost to the NRC or to
respondents in hearings on challenges to immediate effectiveness of
orders but a benefit would accrue to the extent that potential
confusion over the meaning of the NRC's regulations is removed. The NRC
believes that the proposed rule would improve the efficiency of NRC
enforcement proceedings without imposing costs on either the NRC or on
participants in such proceedings.

X. Regulatory Flexibility Act Certification

In accordance with the Regulatory Flexibility Act, as amended, 5
U.S.C. 605(b), the NRC certifies that this proposed rule would not have
a significant economic impact on a substantial number of small
entities. This proposed rule would affect small businesses as they are
defined in Section 3 of the Small Business Act, 15 U.S.C. 632, and the
standards set forth in 13 CFR Part 121, and within the size standards
established by the NRC (10 CFR 2.810). However, this proposed rule
would not have a significant economic impact on these entities because
(1) the amendments to the Deliberate Misconduct Rule do not impose any
costs of compliance and (2) the proposed amendments to the rules
governing hearings on immediate effectiveness of orders do not impose
additional costs and would improve the efficiency of these hearings by
clarifying the rules governing these hearings.

XI. 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 proposed 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
proposed 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'' (a copy of which may be viewed at https://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 program elements
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 program elements 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 program elements do not meet the
criteria of Category A or B but contain 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 program elements 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) program elements are not required for
compatibility but are identified as

[[Page 8105]]

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 program elements
address areas of regulation that cannot be relinquished to Agreement
States under the AEA, or the 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.'' If the NRC promulgates the
proposed rule's amendments in a final rule, 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 Proposed Rule
----------------------------------------------------------------------------------------------------------------
Compatibility
Section Change Subject ---------------------------------------
Existing New
----------------------------------------------------------------------------------------------------------------
Part 2
----------------------------------------------------------------------------------------------------------------
2.202(c)........................ Revised........... Orders............ NRC............... NRC.
----------------------------------------------------------------------------------------------------------------
Part 30
----------------------------------------------------------------------------------------------------------------
30.10(a) and (c)................ Revised........... Deliberate C................. C.
misconduct..
----------------------------------------------------------------------------------------------------------------
Part 40
----------------------------------------------------------------------------------------------------------------
40.10(a) and (c)................ Revised........... Deliberate C................. C.
misconduct..
----------------------------------------------------------------------------------------------------------------
Part 50
----------------------------------------------------------------------------------------------------------------
50.5(a) and (c)................. Revised........... Deliberate NRC............... NRC.
misconduct..
----------------------------------------------------------------------------------------------------------------
Part 52
----------------------------------------------------------------------------------------------------------------
52.4(b) and (c)................. Revised........... Deliberate NRC............... NRC.
misconduct..
----------------------------------------------------------------------------------------------------------------
Part 60
----------------------------------------------------------------------------------------------------------------
60.11(a) and (c)................ Revised........... Deliberate NRC............... NRC.
misconduct..
----------------------------------------------------------------------------------------------------------------
Part 61
----------------------------------------------------------------------------------------------------------------
61.9b(a) and (c)................ Revised........... Deliberate C................. C.
misconduct..
----------------------------------------------------------------------------------------------------------------
Part 63
----------------------------------------------------------------------------------------------------------------
63.11(a) and (c)................ Revised........... Deliberate NRC............... NRC.
misconduct..
----------------------------------------------------------------------------------------------------------------
Part 70
----------------------------------------------------------------------------------------------------------------
70.10(a) and (c)................ Revised........... Deliberate C................. C.
misconduct..
----------------------------------------------------------------------------------------------------------------
Part 71
----------------------------------------------------------------------------------------------------------------
71.8(b) and (d)................. Revised........... Deliberate C................. C.
misconduct..
----------------------------------------------------------------------------------------------------------------
Part 72
----------------------------------------------------------------------------------------------------------------
72.12(a) and (c)................ Revised........... Deliberate NRC............... NRC.
misconduct..
----------------------------------------------------------------------------------------------------------------
Part 76
----------------------------------------------------------------------------------------------------------------
76.10(a) and (c)................ Revised........... Deliberate NRC............... NRC.
misconduct..
----------------------------------------------------------------------------------------------------------------
Part 110
----------------------------------------------------------------------------------------------------------------
110.7b(a) and (c)............... Revised........... Deliberate NRC............... NRC.
misconduct..
----------------------------------------------------------------------------------------------------------------
Part 150
----------------------------------------------------------------------------------------------------------------
150.2........................... Revised........... Deliberate D................. D.
misconduct..
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------

[[Page 8106]]

XII. Backfitting and Issue Finality

The proposed rule would revise the Deliberate Misconduct Rule as it
appears in various sections of 10 CFR Chapter I. The proposed rule
would revise the Deliberate Misconduct Rule by incorporating the
concept of deliberate ignorance as an additional basis on which to take
enforcement action against persons who violate the rule. The proposed
rule would also revise 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 proposed rule would also revise 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 proposed revisions to the Deliberate Misconduct Rule would
clarify the NRC's prohibition of deliberate misconduct to provide
notice of proscribed conduct to all affected persons. These revisions
would not change, modify, or affect the design, procedures, or
regulatory approvals protected under the various NRC backfitting and
issue finality provisions. Accordingly, the proposed revisions to the
Deliberate Misconduct Rule, if promulgated as a final rule, would not
represent backfitting imposed on any entity protected by the
backfitting provisions in 10 CFR Parts 50, 70, 72, or 76, nor would the
proposed revisions be inconsistent with any issue finality provision in
10 CFR Part 52.
The proposed revisions to 10 CFR 2.202 would clarify the agency's
adjudicatory procedures with respect to challenges to immediate
effectiveness of orders. These revisions would not change, modify, or
affect the design, procedures, or regulatory approvals protected under
the various NRC backfitting and issue finality provisions. Accordingly,
the proposed revisions to the adjudicatory procedures, if adopted in
final form, would not represent backfitting imposed on any entity
protected by backfitting provisions in 10 CFR Parts 50, 70, 72, or 76,
nor would the proposed revisions be inconsistent with any issue
finality provision in 10 CFR Part 52.

List of Subjects

10 CFR Part 2

Administrative practice and procedure, Antitrust, Byproduct
material, Classified information, Environmental protection, Nuclear
materials, Nuclear power plants and reactors, Penalties, Sex
discrimination, Source material, Special nuclear material, Waste
treatment and disposal.

10 CFR Part 30

Byproduct material, Criminal penalties, Government contracts,
Intergovernmental relations, Isotopes, Nuclear materials, Radiation
protection, Reporting and recordkeeping requirements.

10 CFR Part 40

Criminal penalties, Government contracts, Hazardous materials
transportation, Nuclear materials, Reporting and recordkeeping
requirements, Source material, Uranium.

10 CFR Part 50

Antitrust, Classified information, Criminal penalties, Fire
protection, Intergovernmental relations, Nuclear power plants and
reactors, Radiation protection, Reactor siting criteria, Reporting and
recordkeeping requirements.

10 CFR Part 52

Administrative practice and procedure, Antitrust, Backfitting,
Combined license, Early site permit, Emergency planning, Fees,
Inspection, Limited work authorization, Nuclear power plants and
reactors, Probabilistic risk assessment, Prototype, Reactor siting
criteria, Redress of site, Reporting and recordkeeping requirements,
Standard design, Standard design certification.

10 CFR Part 60

Criminal penalties, High-level waste, Nuclear materials, Nuclear
power plants and reactors, Reporting and recordkeeping requirements,
Waste treatment and disposal.

10 CFR Part 61

Criminal penalties, Low-level waste, Nuclear materials, Reporting
and recordkeeping requirements, Waste treatment and disposal.

10 CFR Part 63

Criminal penalties, High-level waste, Nuclear power plants and
reactors, Reporting and recordkeeping requirements, Waste treatment and
disposal.

10 CFR Part 70

Criminal penalties, Hazardous materials transportation, Material
control and accounting, Nuclear materials, Packaging and containers,
Radiation protection, Reporting and recordkeeping requirements,
Scientific equipment, Security measures, Special nuclear material.

10 CFR Part 71

Criminal penalties, Hazardous materials transportation, Nuclear
materials, Packaging and containers, Reporting and recordkeeping
requirements.

10 CFR Part 72

Administrative practice and procedure, Criminal penalties, Manpower
training programs, Nuclear materials, Occupational safety and health,
Penalties, Radiation protection, Reporting and recordkeeping
requirements, Security measures, Spent fuel, Whistleblowing.

10 CFR Part 76

Certification, Criminal penalties, Radiation protection, Reporting
and recordkeeping requirements, Security measures, Special nuclear
material, Uranium enrichment by gaseous diffusion.

10 CFR Part 110

Administrative practice and procedure, Classified information,
Criminal penalties, Export, Import, Intergovernmental relations,
Nuclear materials, Nuclear power plants and reactors, Reporting and
recordkeeping requirements, Scientific equipment.

10 CFR Part 150

Criminal penalties, Hazardous materials transportation,
Intergovernmental relations, Nuclear materials, 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. 553; the NRC is proposing to
amend 10 CFR parts 2, 30, 40, 50, 52, 60, 61, 63, 70, 71, 72, 76, 110,
and 150 as follows:

PART 2--AGENCY RULES OF PRACTICE AND PROCEDURE

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

Authority: Atomic Energy Act secs. 161, 181, 191 (42 U.S.C.
2201, 2231, 2241); Energy Reorganization Act sec. 201 (42 U.S.C.
5841); 5 U.S.C. 552; Government Paperwork Elimination Act sec. 1704
(44 U.S.C. 3504 note).

Section 2.101 also issued under Atomic Energy Act secs. 53, 62,
63, 81, 103, 104 (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134,

[[Page 8107]]

2135); Nuclear Waste Policy Act sec. 114(f) (42 U.S.C. 10143(f));
National Environmental Policy Act sec. 102 (42 U.S.C. 4332); Energy
Reorganization Act sec. 301 (42 U.S.C. 5871).
Sections 2.102, 2.103, 2.104, 2.105, 2.321 also issued under
Atomic Energy Act secs. 102, 103, 104, 105, 183i, 189 (42 U.S.C.
2132, 2133, 2134, 2135, 2233, 2239). Sections 2.200-2.206 also
issued under Atomic Energy Act secs. 161, 186, 234 (42 U.S.C.
2201(b),(i),(o), 2236, 2282); sec. 206 (42 U.S.C. 5846). Section
2.205(j) also issued under Pub. L. 101-410, as amended by section
3100(s), Pub. L. 104-134 (28 U.S.C. 2461 note). Subpart C also
issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239). Section
2.301 also issued under 5 U.S.C. 554. Sections 2.343, 2.346, 2.712
also issued under 5 U.S.C. 557. Section 2.340 also issued under
Nuclear Waste Policy Act secs. 135, 141, Pub. L. 97-425, 96 Stat.
2232, 2241 (42 U.S.C. 10155, 10161). Section 2.390 also issued under
5 U.S.C. 552. Sections 2.600-2.606 also issued under sec. 102 (42
U.S.C. 4332). Sections 2.800 and 2.808 also issued under 5 U.S.C.
553. Section 2.809 also issued under 5 U.S.C. 553; Atomic Energy Act
sec. 29 (42 U.S.C. 2039). Subpart K also issued under Atomic Energy
Act sec. 189 (42 U.S.C. 2239); Nuclear Waste Policy Act sec. 134 (42
U.S.C. 10154). Subpart L also issued under Atomic Energy Act sec.
189 (42 U.S.C. 2239). Subpart M also issued under Atomic Energy Act
secs. 184, 189 (42 U.S.C. 2234, 2239). Subpart N also issued under
Atomic Energy Act sec. 189 (42 U.S.C. 2239).

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) In cases where the presiding officer orders live testimony,
the NRC staff may present its response through live testimony or by a
written response; if the NRC staff chooses to respond in writing, it
shall respond within 5 days of the receipt of the presiding officer's
order granting live testimony. Otherwise, the NRC staff shall respond
in writing within 5 days of the receipt of a motion to set aside the
immediate effectiveness of the order that does not include a motion to
order live testimony or the presiding officer's order denying a motion
for live testimony.
(iv) The presiding officer shall conduct any live testimony
pursuant to Sec. 2.319, 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 to whom the Commission has issued
an immediately effective 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 must 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 will uphold the immediate
effectiveness of the order upon finding 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 30--RULES OF GENERAL APPLICABILITY TO DOMESTIC LICENSING OF
BYPRODUCT MATERIAL

0
3. The authority citation for part 30 is revised to read as follows:

Authority: Atomic Energy Act secs. 81, 82, 161, 181, 182, 183,
186, 223, 234 (42 U.S.C. 2111, 2112, 2201, 2231, 2232, 2233, 2236,
2273, 2282); Energy Reorganization Act secs. 201, 202, 206 (42
U.S.C. 5841, 5842, 5846); Government Paperwork Elimination Act sec.
1704 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 109-
58, 119 Stat. 549 (2005).

Section 30.7 also issued under Energy Reorganization Act sec.
211, Pub. L. 95-601, sec. 10, as amended by Pub. L. 102-486, sec.
2902 (42 U.S.C. 5851). Section 30.34(b) also issued under Atomic
Energy Act sec. 184 (42 U.S.C. 2234). Section 30.61 also issued
under Atomic Energy Act sec. 187 (42 U.S.C. 2237).

0
4. In Sec. 30.10, revise paragraphs (a)(2) and (c) to read as follows:

Sec. 30.10 Deliberate misconduct.

(a) * * *
(2) Deliberately submit to the NRC, a licensee, a certificate
holder, an applicant, or a licensee's, certificate holder's or
applicant's contractor or subcontractor, information:
(i) That the person submitting the information knows to be
incomplete or inaccurate in some respect material to the NRC; or
(ii) When the person submitting the information subjectively
believes that there is a high probability that the information
submitted is incomplete or inaccurate in some respect material to the
NRC but takes deliberate action to remain ignorant of the
incompleteness or inaccuracy of that information.
* * * * *
(c) For the purposes of paragraph (a)(1) of this section,
deliberate misconduct by a person means:
(1) An intentional act or omission that the person knows would
cause a licensee, certificate holder or applicant to be in violation of
any rule, regulation, or order; or any term, condition, or limitation
of any license issued by the Commission;
(2) An intentional act or omission that the person knows
constitutes a violation of a requirement, procedure, instruction,
contract, purchase order, or policy of a licensee, certificate holder,
applicant, contractor, or subcontractor; or
(3) An intentional act or omission that the person subjectively
believes has a high probability of causing a violation described in
paragraph (c)(1) or (c)(2) of

[[Page 8108]]

this section, but the person takes deliberate action to remain ignorant
of whether the act or omission causes or would have caused, if not
detected, such a violation.

PART 40--DOMESTIC LICENSING OF SOURCE MATERIAL

0
5. The authority citation for part 40 continues to read as follows:

Authority: Atomic Energy Act secs. 11(e)(2), 62, 63, 64, 65,
81, 161, 181, 182, 183, 186, 193, 223, 234, 274, 275 (42 U.S.C.
2014(e)(2), 2092, 2093, 2094, 2095, 2111, 2113, 2114, 2201, 2231,
2232, 2233, 2236, 2243, 2273, 2282, 2021, 2022); Energy
Reorganization Act secs. 201, 202, 206 (42 U.S.C. 5841, 5842, 5846);
Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504
note); Energy Policy Act of 2005, Pub. L. 109-59, 119 Stat. 594
(2005).

Section 40.7 also issued under Energy Reorganization Act sec.
211, Pub. L. 95-601, sec. 10, as amended by Pub. L. 102-486, sec.
2902 (42 U.S.C. 5851). Section 40.31(g) also issued under Atomic
Energy Act sec. 122 (42 U.S.C. 2152). Section 40.46 also issued
under Atomic Energy Act sec. 184 (42 U.S.C. 2234). Section 40.71
also issued under Atomic Energy Act sec. 187 (42 U.S.C. 2237).

0
6. In Sec. 40.10, revise paragraphs (a)(2) and (c) to read as follows:

Sec. 40.10 Deliberate misconduct.

(a) * * *
(2) Deliberately submit to the NRC, a licensee, an applicant, or a
licensee's or applicant's contractor or subcontractor, information:
(i) That the person submitting the information knows to be
incomplete or inaccurate in some respect material to the NRC; or
(ii) When the person submitting the information subjectively
believes that there is a high probability that the information
submitted is incomplete or inaccurate in some respect material to the
NRC but takes deliberate action to remain ignorant of the
incompleteness or inaccuracy of that information.
* * * * *
(c) For the purposes of paragraph (a)(1) of this section,
deliberate misconduct by a person means:
(1) An intentional act or omission that the person knows would
cause a licensee or applicant to be in violation of any rule,
regulation, or order; or any term, condition, or limitation of any
license issued by the Commission;
(2) An intentional act or omission that the person knows
constitutes a violation of a requirement, procedure, instruction,
contract, purchase order, or policy of a licensee, applicant,
contractor, or subcontractor; or
(3) An intentional act or omission that the person subjectively
believes has a high probability of causing a violation described in
paragraph (c)(1) or (c)(2) of this section, but the person takes
deliberate action to remain ignorant of whether the act or omission
causes or would have caused, if not detected, such a violation.

PART 50--DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION
FACILITIES

0
7. The authority citation for part 50 continues to read as follows:

Authority: Atomic Energy Act secs. 102, 103, 104, 105, 147,
149, 161, 181, 182, 183, 186, 189, 223, 234 (42 U.S.C. 2132, 2133,
2134, 2135, 2167, 2169, 2201, 2231, 2232, 2233, 2236, 2239, 2273,
2282); Energy Reorganization Act secs. 201, 202, 206 (42 U.S.C.
5841, 5842, 5846); Nuclear Waste Policy Act sec. 306 (42 U.S.C.
10226); Government Paperwork Elimination Act sec. 1704 (44 U.S.C.
3504 note); Energy Policy Act of 2005, Pub. L. 109-58, 119 Stat. 194
(2005). Section 50.7 also issued under Pub. L. 95-601, sec. 10, as
amended by Pub. L. 102-486, sec. 2902 (42 U.S.C. 5851). Section
50.10 also issued under Atomic Energy Act secs. 101, 185 (42 U.S.C.
2131, 2235); National Environmental Policy Act sec. 102 (42 U.S.C.
4332). Sections 50.13, 50.54(dd), and 50.103 also issued under
Atomic Energy Act sec. 108 (42 U.S.C. 2138).

Sections 50.23, 50.35, 50.55, and 50.56 also issued under Atomic
Energy Act sec. 185 (42 U.S.C. 2235). Appendix Q also issued under
National Environmental Policy Act sec. 102 (42 U.S.C. 4332).
Sections 50.34 and 50.54 also issued under sec. 204 (42 U.S.C.
5844). Sections 50.58, 50.91, and 50.92 also issued under Pub. L.
97-415 (42 U.S.C. 2239). Section 50.78 also issued under Atomic
Energy Act sec. 122 (42 U.S.C. 2152). Sections 50.80-50.81 also
issued under Atomic Energy Act sec. 184 (42 U.S.C. 2234).

0
8. In Sec. 50.5, revise paragraphs (a)(2) and (c) to read as follows:

Sec. 50.5 Deliberate misconduct.

PART 52--LICENSES, CERTIFICATIONS, AND APPROVALS FOR NUCLEAR POWER
PLANTS

0
9. The authority for part 52 continues to read as follows:

Authority: Atomic Energy Act secs. 103, 104, 147, 149, 161,
181, 182, 183, 185, 186, 189, 223, 234 (42 U.S.C. 2133, 2201, 2167,
2169, 2232, 2233, 2235, 2236, 2239, 2282); Energy Reorganization Act
secs. 201, 202, 206, 211 (42 U.S.C. 5841, 5842, 5846, 5851);
Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504
note); Energy Policy Act of 2005, Pub. L. 109-58, 119 Stat. 594
(2005).

0
10. In Sec. 52.4, revise paragraphs (b) and (c)(2) to read as follows:

Sec. 52.4 Deliberate misconduct.

* * * * *
(b) Definitions. For purposes of this section:
Deliberate misconduct by a person or entity means:
(i) An intentional act or omission that the person or entity knows
would cause a licensee or an applicant for a license, standard design
certification, or standard design approval to be in violation of any
rule, regulation, or order; or any term, condition, or limitation of
any license, standard design certification, or standard design approval
issued by the Commission;
(ii) An intentional act or omission that the person or entity knows
constitutes a violation of a requirement, procedure, instruction,
contract, purchase order, or policy of a licensee, holder of a standard
design approval, applicant for a license, standard design
certification, or standard design approval, or contractor or
subcontractor; or
(iii) An intentional act or omission that the person or entity
subjectively believes has a high probability of causing a violation
described in paragraph (i) or (ii) of this definition,

[[Page 8109]]

but the person or entity takes deliberate action to remain ignorant of
whether the act or omission causes or would have caused, if not
detected, such a violation.
(c) * * *
(2) Deliberately submit to the NRC; a licensee, an applicant for a
license, standard design certification or standard design approval; or
a licensee's, standard design approval holder's, or applicant's
contractor or subcontractor, information:
(i) That the person or entity submitting the information knows to
be incomplete or inaccurate in some respect material to the NRC; or
(ii) When the person or entity submitting the information
subjectively believes that there is a high probability that the
information submitted is incomplete or inaccurate in some respect
material to the NRC but takes deliberate action to remain ignorant of
the incompleteness or inaccuracy of that information.
* * * * *

PART 60--DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN GEOLOGIC
REPOSITORIES

0
11. The authority citation for part 60 is revised to read as follows:

Authority: Atomic Energy Act secs. 51, 53, 62, 63, 65, 81, 161,
182, 183, 223, 234 (42 U.S.C. 2071, 2073, 2092, 2093, 2095, 2111,
2201, 2232, 2233, 2273, 2282); Energy Reorganization Act secs. 201,
202, 206, 211, Pub. L. 95-601, sec. 10, as amended by Pub. L. 102-
486, sec. 2902 (42 U.S.C. 5841, 5842, 5846, 5851); sec. 14, Pub. L.
95-601 (42 U.S.C. 2021a); National Environmental Policy Act sec. 102
(42 U.S.C. 4332); Nuclear Waste Policy Act secs. 114, 117, 121 (42
U.S.C. 10134, 10137, 10141); Government Paperwork Elimination Act
sec. 1704 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L.
109-58, 119 Stat. 594 (2005).

0
12. In Sec. 60.11, revise paragraphs (a)(2) and (c) to read as
follows:

Sec. 60.11 Deliberate misconduct.

PART 61--LICENSING REQUIREMENTS FOR LAND DISPOSAL OF RADIOACTIVE
WASTE

0
13. The authority citation for part 61 is revised to read as follows:

Authority: Atomic Energy Act secs. 53, 57, 62, 63, 65, 81, 161,
181, 182, 183, 223, 234 (42 U.S.C. 2073, 2077, 2092, 2093, 2095,
2111, 2201, 2231, 2232, 2233, 2273, 2282); Energy Reorganization Act
secs. 201, 202, 206 (42 U.S.C. 5841, 5842, 5846), sec. 211, Pub. L.
95-601, sec. 10, as amended by Pub. L. 102-486, sec. 2902 (42 U.S.C.
5851). Pub. L. 95-601, secs. 10, 14, 92 Stat. 2951, 2953 (42 U.S.C.
2021a, 5851); Government Paperwork Elimination Act sec. 1704 (44
U.S.C. 3504 note); Energy Policy Act of 2005 sec. 651(e), Pub. L.
109-58, 119 Stat. 806-810 (42 U.S.C. 2014, 2021, 2021b, 2111).

0
14. In Sec. 61.9b, revise paragraphs (a)(2) and (c) to read as
follows:

Sec. 61.9b Deliberate misconduct.

PART 63--DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN A GEOLOGIC
REPOSITORY AT YUCCA MOUNTAIN, NEVADA

0
15. The authority citation for part 63 is revised to read as follows:

Authority: Atomic Energy Act secs. 51, 53, 62, 63, 65, 81, 161,
182, 183 (42 U.S.C. 2071, 2073, 2092, 2093, 2095, 2111, 2201, 2232,
2233); Energy Reorganization Act secs. 201, 202, 206, 211 (42 U.S.C.
5841, 5842, 5846, 5851); sec 14, Pub. L. 95-601 (42 U.S.C. 2021a);
National Environmental Policy Act sec. 102 (42 U.S.C. 4332); Nuclear
Waste Policy Act secs. 114, 117, 121 (42 U.S.C. 10134, 10137,
10141); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy
Policy Act of 2005, Pub. L. 109-58, 119 Stat. 594 (2005).

0
16. In Sec. 63.11, revise paragraphs (a)(2) and (c) to read as
follows:

Sec. 63.11 Deliberate misconduct.

[[Page 8110]]

term, condition, or limitation of any license issued by the Commission;
(2) An intentional act or omission that the person knows
constitutes a violation of a requirement, procedure, instruction,
contract, purchase order, or policy of a licensee, applicant,
contractor, or subcontractor; or
(3) An intentional act or omission that the person subjectively
believes has a high probability of causing a violation described in
paragraph (c)(1) or (c)(2) of this section, but the person takes
deliberate action to remain ignorant of whether the act or omission
causes or would have caused, if not detected, such a violation.

PART 70--DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL

0
17. The authority citation for part 70 continues to read as follows:

Authority: Atomic Energy Act secs. 51, 53, 161, 182, 183, 193,
223, 234 (42 U.S.C. 2071, 2073, 2201, 2232, 2233, 2243, 2273, 2282,
2297f); secs. 201, 202, 204, 206, 211 (42 U.S.C. 5841, 5842, 5845,
5846, 5851); Government Paperwork Elimination Act sec. 1704 (44
U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 109-58, 119
Stat. 194 (2005).

Sections 70.1(c) and 70.20a(b) also issued under secs. 135, 141,
Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161).
Section 70.21(g) also issued under Atomic Energy Act sec. 122
(42 U.S.C. 2152).
Section 70.31 also issued under Atomic Energy Act sec. 57(d) (42
U.S.C. 2077(d)).
Sections 70.36 and 70.44 also issued under Atomic Energy Act
sec. 184 (42 U.S.C. 2234).
Section 70.81 also issued under Atomic Energy Act secs. 186, 187
(42 U.S.C. 2236, 2237).
Section 70.82 also issued under Atomic Energy Act sec. 108 (42
U.S.C. 2138).

0
18. In Sec. 70.10, revise paragraphs (a)(2) and (c) to read as
follows:

Sec. 70.10 Deliberate misconduct.

PART 71--PACKAGING AND TRANSPORTATION OF RADIOACTIVE MATERIAL

0
19. The authority citation for part 71 is revised to read as follows:

Authority: Atomic Energy Act secs. 53, 57, 62, 63, 81, 161,
182, 183, 223, 234, 1701 (42 U.S.C. 2073, 2077, 2092, 2093, 2111,
2201, 2232, 2233, 2273, 2282, 2297f); Energy Reorganization Act
secs. 201, 202, 206, 211 (42 U.S.C. 5841, 5842, 5846, 5851); Nuclear
Waste Policy Act sec. 180 (42 U.S.C. 10175); Government Paperwork
Elimination Act sec. 1704 (44 U.S.C. 3504 note); Energy Policy Act
of 2005, Pub. L. 109-58, 119 Stat. 594 (2005).

Section 71.97 also issued under sec. 301, Pub. L. 96-295, 94
Stat. 789-790.

0
20. In Sec. 71.8, revise paragraphs (b)(2) and (d) to read as follows:

Sec. 71.8 Deliberate misconduct.

* * * * *
(b) * * *
(2) Deliberately submit to the NRC, a licensee, a certificate
holder, a quality assurance program approval holder, an applicant for a
license, certificate or quality assurance program approval, or a
licensee's, applicant's, certificate holder's, or quality assurance
program approval holder's contractor or subcontractor, information:
(i) That the person submitting the information knows to be
incomplete or inaccurate in some respect material to the NRC; or
(ii) When the person submitting the information subjectively
believes that there is a high probability that the information
submitted is incomplete or inaccurate in some respect material to the
NRC but takes deliberate action to remain ignorant of the
incompleteness or inaccuracy of that information.
* * * * *
(d) For the purposes of paragraph (b)(1) of this section,
deliberate misconduct by a person means:
(1) An intentional act or omission that the person knows would
cause a licensee, certificate holder, quality assurance program
approval holder, or applicant for a license, certificate, or quality
assurance program approval to be in violation of any rule, regulation,
or order; or any term, condition, or limitation of any license or
certificate issued by the Commission;
(2) An intentional act or omission that the person knows
constitutes a violation of a requirement, procedure, instruction,
contract, purchase order, or policy of a licensee, certificate holder,
quality assurance program approval holder, applicant, or the contractor
or subcontractor of any of them; or
(3) An intentional act or omission that the person subjectively
believes has a high probability of causing a violation described in
paragraph (d)(1) or (d)(2) of this section but the person takes
deliberate action to remain ignorant of whether the act or omission
causes or would have caused, if not detected, such a violation.

PART 72--LICENSING REQUIREMENTS FOR THE INDEPENDENT STORAGE OF
SPENT NUCLEAR FUEL, HIGH-LEVEL RADIOACTIVE WASTE, AND REACTOR-
RELATED GREATER THAN CLASS C WASTE

0
21. The authority citation for part 72 is revised to read as follows:

Authority: Atomic Energy Act secs. 51, 53, 57, 62, 63, 65, 69,
81, 161, 182, 183, 184, 186, 187, 189, 223, 234, 274 (42 U.S.C.
2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233,
2234, 2236, 2237, 2238, 2273, 2282, 2021); Energy Reorganization Act
sec. 201, 202, 206, 211 (42 U.S.C. 5841, 5842, 5846, 5851); National
Environmental Policy Act sec. 102 (42 U.S.C. 4332); Nuclear Waste
Policy Act secs. 131, 132, 133, 135, 137, 141 148 (42 U.S.C. 10151,
10152, 10153, 10155, 10157, 10161, 10168); sec. 1704, 112 Stat. 2750
(44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 109-58,
119 Stat. 549 (2005).

Section 72.44(g) also issued under secs. Nuclear Waste Policy
Act 142(b) and 148(c), (d) (42 U.S.C. 10162(b), 10168(c), (d)).
Section 72.46 also issued under Atomic Energy Act sec. 189 (42
U.S.C. 2239); Nuclear Waste Policy Act sec. 134 (42 U.S.C. 10154).
Section 72.96(d) also issued under Nuclear Waste Policy Act sec.
145(g) (42 U.S.C. 10165(g)).
Subpart J also issued under Nuclear Waste Policy Act secs.
117(a), 141(h) (42 U.S.C. 10137(a), 10161(h)).
Subpart K is also issued under sec. 218(a) (42 U.S.C. 10198).

0
22. In Sec. 72.12, revise paragraphs (a)(2) and (c) to read as
follows:

[[Page 8111]]

Sec. 72.12 Deliberate misconduct.

(a) * * *
(2) Deliberately submit to the NRC, a licensee, a certificate
holder, an applicant for a license or certificate, or a licensee's,
applicant's, or certificate holder's contractor or subcontractor,
information:
(i) That the person submitting the information knows to be
incomplete or inaccurate in some respect material to the NRC; or
(ii) When the person submitting the information subjectively
believes that there is a high probability that the information
submitted is incomplete or inaccurate in some respect material to the
NRC but takes deliberate action to remain ignorant of the
incompleteness or inaccuracy of that information.
* * * * *
(c) For the purposes of paragraph (a)(1) of this section,
deliberate misconduct by a person means:
(1) An intentional act or omission that the person knows would
cause a licensee, certificate holder or applicant for a license or
certificate to be in violation of any rule, regulation, or order; or
any term, condition, or limitation of any license or certificate issued
by the Commission;
(2) An intentional act or omission that the person knows
constitutes a violation of a requirement, procedure, instruction,
contract, purchase order, or policy of a licensee, certificate holder,
applicant, contractor, or subcontractor; or
(3) An intentional act or omission that the person subjectively
believes has a high probability of causing a violation described in
paragraph (c)(1) or (c)(2) of this section, but the person takes
deliberate action to remain ignorant of whether the act or omission
causes or would have caused, if not detected, such a violation.

PART 76--CERTIFICATION OF GASEOUS DIFFUSION PLANTS

0
23. The authority citation for part 76 is revised to read as follows:

Authority: Atomic Energy Act secs. 161, 223, 234, 1312, 1701
(42 U.S.C. 2201, 2273, 2282, 2297b-11, 2297f); Energy Reorganization
Act secs. 201, 204, 206, 211 (42 U.S.C. 5841, 5842, 5845, 5846,
5851); Government Paperwork Elimination Act sec. 1704 (44 U.S.C.
3504 note); Energy Policy Act of 2005, Pub. L. 109-58, 119 Stat. 549
(2005).

Section 76.22 also issued under Atomic Energy Act sec. 193(f)
(42 U.S.C. 2243(f)). Section 76.35(j) also issued under Atomic
Energy Act sec. 122 (42 U.S.C. 2152).

0
24. In Sec. 76.10, revise paragraphs (a)(2) and (c) to read as
follows:

Sec. 76.10 Deliberate misconduct.

(a) * * *
(2) Deliberately submit to the NRC, the Corporation, or its
contractor or subcontractor, information:
(i) That the person submitting the information knows to be
incomplete or inaccurate in some respect material to the NRC; or
(ii) When the person submitting the information subjectively
believes that there is a high probability that the information
submitted is incomplete or inaccurate in some respect material to the
NRC but takes deliberate action to remain ignorant of the
incompleteness or inaccuracy of that information.
* * * * *
(c) For the purposes of paragraph (a)(1) of this section,
deliberate misconduct by a person means:
(1) An intentional act or omission that the person knows would
cause the Corporation to be in violation of any rule, regulation, or
order, or any term, condition, or limitation of a certificate or
approved compliance plan issued by the Director;
(2) An intentional act or omission that the person knows
constitutes a violation of a requirement, procedure, instruction,
contract, purchase order, or policy of the Corporation, contractor, or
subcontractor; or
(3) An intentional act or omission that the person subjectively
believes has a high probability of causing a violation described in
paragraph (c)(1) or (c)(2) of this section, but the person takes
deliberate action to remain ignorant of whether the act or omission
causes or would have caused, if not detected, such a violation.

PART 110--EXPORT AND IMPORT OF NUCLEAR EQUIPMENT AND MATERIAL

0
25. The authority citation for part 110 is revised to read as follows:

Authority: Atomic Energy Act secs. 51, 53, 54, 57, 63, 64, 65,
81, 82, 103, 104, 109, 111, 126, 127, 128, 129, 161, 181, 182, 183,
187, 189, 223, 234 (42 U.S.C. 2071, 2073, 2074, 2077, 2092-2095,
2111, 2112, 2133, 2134, 2139, 2139a, 2141, 2154-2158, 2201, 2231-
2233, 2237, 2239, 2273, 2282); Energy Reorganization Act sec. 201
(42 U.S.C. 5841; Solar, Wind, Waste, and Geothermal Power Act of
1990 sec. 5 (42 U.S.C. 2243); Government Paperwork Elimination Act
sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act
of 2005, 119 Stat. 594.

Sections 110.1(b)(2) and 110.1(b)(3) also issued under 22 U.S.C.
2403. Section 110.11 also issued under Atomic Energy Act secs.
54(c), 57(d), 122 (42 U.S.C. 2074, 2152). Section 110.50(b)(3) also
issued under Atomic Energy Act sec. 123 (42 U.S.C. 2153). Section
110.51 also issued under Atomic Energy Act sec. 184 (42 U.S.C.
2234). Section 110.52 also issued under Atomic Energy Act sec. 186
(42 U.S.C. 2236). Sections 110.80-110.113 also issued under 5 U.S.C.
552, 554. Sections 110.130-110.135 also issued under 5 U.S.C. 553.
Sections 110.2 and 110.42(a)(9) also issued under Intelligence
Authorization Act sec. 903 (42 U.S.C. 2151 et seq.).

0
26. In Sec. 110.7b, revise paragraphs (a)(2) and (c) to read as
follows:

Sec. 110.7b Deliberate misconduct.

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

0
27. The authority citation for part 150 is revised to read as follows:

Authority: Atomic Energy Act secs. 161, 181, 223, 234 (42
U.S.C. 2201, 2021, 2231, 2273, 2282); Energy Reorganization Act sec.
201 (42 U.S.C. 5841); Government Paperwork Elimination Act sec. 1704
(44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 109-58,
119 Stat. 594 (2005).

Sections 150.3, 150.15, 150.15a, 150.31, 150.32 also issued
under Atomic Energy Act

[[Page 8112]]

secs. 11e(2), 81, 83, 84 (42 U.S.C. 2014e(2), 2111, 2113, 2114).
Section 150.14 also issued under Atomic Energy Act sec. 53 (42
U.S.C. 2073).
Section 150.15 also issued under Nuclear Waste Policy Act sec.
135 (42 U.S.C. 10155). Section 150.17a also issued under Atomic
Energy Act sec. 122 (42 U.S.C. 2152). Section 150.30 also issued
under Atomic Energy Act sec. 234 (42 U.S.C. 2282).

0
28. 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 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 30th day of January 2014.

For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2014-02570 Filed 2-10-14; 8:45 am]
BILLING CODE 7590-01-P

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