Hearings on Challenges to the Immediate Effectiveness of Orders, 63409-63420 [2015-26590]
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63409
Rules and Regulations
Federal Register
Vol. 80, No. 202
Tuesday, October 20, 2015
Nuclear Regulatory
Commission.
ACTION: Final rule.
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Counsel, telephone: 301–415–1177,
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Nuclear Regulatory Commission,
Washington, DC 20555–0001.
SUPPLEMENTARY INFORMATION:
The U.S. Nuclear Regulatory
Commission (NRC) is amending its
regulations regarding challenges to the
immediate effectiveness of NRC
enforcement orders to clarify the burden
of proof and to clarify the authority of
the presiding officer to order live
testimony in resolving these challenges.
DATES: This final rule is effective on
November 19, 2015.
ADDRESSES: Please refer to Docket ID
NRC–2013–0132 when contacting the
NRC about the availability of
information for this final rule. You may
obtain publicly-available information
related to this final rule by any of the
following methods:
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https://www.regulations.gov and search
for Docket ID NRC–2013–0132. Address
questions about NRC dockets to Carol
Gallagher; telephone: 301–415–3463;
email: Carol.Gallagher@nrc.gov. For
technical questions contact the
individual listed in the FOR FURTHER
INFORMATION CONTACT section of this
final rule.
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Executive Summary
The U.S. Nuclear Regulatory
Commission (NRC) is amending its
regulations regarding the issuance of
immediately effective orders to clarify
the burden of proof in proceedings on
challenges to the immediate
effectiveness of such orders and the
authority of the presiding officer in such
proceedings to order live testimony. In
NRC enforcement proceedings, the
recipient of an order ordinarily may
challenge the validity of that order
before its terms become effective at a
later specified date. However, in certain
circumstances, the NRC may issue
orders to regulated entities or
individuals that are ‘‘immediately
effective,’’ meaning the order’s terms are
effective upon issuance and remain in
effect even during the pendency of a
challenge. These amendments confirm
that the recipient of the immediately
effective order has the burden to initiate
a challenge regarding the order’s
immediate effectiveness and present
evidence that the order, including the
need for immediate effectiveness, is not
based on adequate evidence. The
amendments also clarify that the NRC
staff ultimately bears the burden of
persuasion that immediate effectiveness
is warranted. Additionally, these
amendments confirm that the presiding
officer in a challenge to the immediate
effectiveness of an order may order live
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10 CFR Parts 2 and 150
[NRC–2013–0132]
RIN 3150–AJ27
Hearings on Challenges to the
Immediate Effectiveness of Orders
AGENCY:
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testimony, including cross examination
of witnesses, if it will assist in the
presiding officer’s decision. These are
not substantive changes to the agency’s
enforcement procedures, but rather
confirm existing burdens and presiding
officer authority.
In this final rule, the Commission is
not adopting the previously proposed
amendment 1 that would have
incorporated the concept of ‘‘deliberate
ignorance’’ as an additional basis upon
which the NRC could take enforcement
action against an individual for
violating the rule. The Commission
agrees with public commenters’ concern
that the subjectivity of the deliberate
ignorance standard makes it difficult to
implement. This difficulty would make
the enforcement process more complex
and burdensome, and any
corresponding benefits would not
outweigh these disadvantages. This
decision is discussed in more detail in
Section IV, ‘‘Public Comment Analysis,’’
of this document.
Table of Contents
I. Background
II. Discussion
III. Opportunities for Public Participation
IV. Public Comment Analysis
V. Section-by-Section Analysis
VI. Regulatory Flexibility Certification
VII. Regulatory Analysis
VIII. Backfitting and Issue Finality
IX. Cumulative Effects of Regulation
X. Plain Writing
XI. National Environmental Policy Act
XII. Paperwork Reduction Act
XIII. Congressional Review Act
XIV. Compatibility of Agreement State
Regulations
XV. Voluntary Consensus Standards
I. Background
On January 4, 2006, the U.S. Nuclear
Regulatory Commission (NRC) issued an
immediately effective order to Mr.
David Geisen, a former employee at the
Davis-Besse Nuclear Power Station,
barring him from employment in the
nuclear industry for 5 years.2 The order
1 On February 11, 2014, the NRC published the
proposed amendments in a proposed rule entitled,
‘‘Deliberate Misconduct Rule and Hearings on
Challenges to the Immediate Effectiveness of
Orders’’ (79 FR 8097). The NRC changed the title
of this final rule to ‘‘Hearings on Challenges to the
Immediate Effectiveness of Orders’’ to more clearly
reflect that the proposed changes to the Deliberate
Misconduct Rule were not adopted.
2 David Geisen, LBP–09–24, 70 NRC 676 (2009),
aff’d, CLI–10–23, 72 NRC 210 (2010).
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charged Mr. Geisen with deliberate
misconduct in contributing to the
submission of information to the NRC
that he knew was not complete or
accurate in material respects. The U.S.
Department of Justice (DOJ) later
obtained a grand jury indictment against
Mr. Geisen on charges under 18 U.S.C.
1001 for submitting false statements to
the NRC.3 In the criminal case, the judge
gave the jury instructions under the
prosecution’s two alternative theories:
The jury could find Mr. Geisen guilty if
he either knew that he was submitting
false statements or if he acted with
deliberate ignorance of their falsity. The
jury found Mr. Geisen guilty on a
general verdict; that is, the jury found
Mr. Geisen guilty without specifying
whether it found Mr. Geisen acted out
of actual knowledge or deliberate
ignorance. The United States Court of
Appeals for the Sixth Circuit upheld Mr.
Geisen’s conviction on appeal.4
In the parallel NRC enforcement
proceeding, brought under the agency’s
Deliberate Misconduct Rule, § 50.5 of
title 10 of the Code of Federal
Regulations (10 CFR), Mr. Geisen’s
criminal conviction prompted the NRC’s
Atomic Safety and Licensing Board (the
Board) to consider whether Mr. Geisen
was collaterally estopped 5 from
denying the same wrongdoing in the
NRC proceeding.6 The Board found and
the Commission upheld, on appeal, that
collateral estoppel could not be applied
because the NRC’s Deliberate
Misconduct Rule did not include
deliberate ignorance and the general
verdict in the criminal proceeding did
not specify whether the verdict was
based on actual knowledge or deliberate
ignorance.7
3 United States v. Geisen, 612 F.3d 471, 485–86
(6th Cir. 2010), cert. denied, 131 S. Ct. 1813 (2011),
(citing United States v. Geisen, 2008 WL 6124567
(N.D. Ohio May 2, 2008)).
4 Id. at 485–86.
5 Collateral estoppel precludes a defendant
convicted in a criminal proceeding from
challenging in a subsequent civil proceeding any
facts that were necessary for the criminal
conviction. Collateral estoppel applies to 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).
6 Geisen, LBP–09–24, 70 NRC at 709–26; see 10
CFR 50.5.
7 The Board stated that ‘‘the [NRC] Staff flatly and
unmistakably conceded that the ‘deliberate
ignorance’ theory is not embraced within the
‘deliberate misconduct’ standard that governs our
proceedings.’’ Geisen, LBP–09–24, 70 NRC at 715
(alteration added). In its decision, the Commission
stated ‘‘[t]he distinction between the court’s
‘deliberate ignorance’ standard and the [NRC’s]
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The lack of certainty as to the specific
basis of the jury’s verdict was
significant, because if the verdict was
based on actual knowledge, the Board
could have applied collateral estoppel
based on the NRC’s identical actual
knowledge standard and the same facts
in the criminal case.8 However, because
the general verdict could have been
based on deliberate ignorance, the Board
could not apply collateral estoppel,
because the NRC does not recognize
conduct meeting the deliberate
ignorance knowledge standard as
deliberate misconduct. The Commission
affirmed the Board’s decision.9 This
outcome shows that the Deliberate
Misconduct Rule, as presently written,
does not provide for an enforcement
action on the basis of deliberate
ignorance and the Board cannot apply
collateral estoppel where a parallel DOJ
criminal prosecution proceeding may be
based on a finding of deliberate
ignorance.
In the Staff Requirements
Memorandum (SRM) to SECY–10–0074,
‘‘David Geisen, NRC Staff Petition for
Review of LBP–09–24 (Aug. 28, 2009),’’
dated September 3, 2010 (ADAMS
Accession No. ML102460411), the
Commission directed the NRC’s Office
of the General Counsel (OGC) to
conduct a review of three issues: (1)
How parallel NRC enforcement actions
and DOJ criminal prosecutions affect
each other, (2) the issuance of
immediately effective enforcement
orders in matters that DOJ is also
pursuing, and (3) the degree of
knowledge required for pursuing
violations against individuals for
deliberate misconduct. In 2011, OGC
conducted the requested review and
provided recommendations to the
Commission for further consideration.
In response, in 2012, the Commission
directed OGC to develop a proposed
rule that would incorporate the
deliberate ignorance standard into the
Deliberate Misconduct Rule. As part of
this effort, the Commission directed
OGC to examine the definitions of
deliberate ignorance from all Federal
circuit courts to aid in developing the
most appropriate definition of this term
for the NRC. The Commission also
directed OGC to clarify two aspects of
the regulations regarding challenges to
immediate effectiveness of NRC orders
‘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).
8 Geisen, CLI–10–23, 72 NRC at 249.
9 Id. at 254.
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as part of this rulemaking: (1) The
burden of proof and (2) the authority of
the presiding officer to order live
testimony in resolving such a challenge.
This final rule amends 10 CFR 2.202,
which governs challenges to, and the
presiding officer’s review of, the
immediate effectiveness of an order.
Currently, the Commission may make
orders immediately effective under 10
CFR 2.202(a)(5) if it finds that the public
health, safety, or interest so requires or
if willful conduct caused a violation of
the Atomic Energy Act of 1954, as
amended (AEA), an NRC regulation,
license condition, or previously issued
Commission order. This final rule
amends the NRC’s regulations by
clarifying the following: (1) Which party
bears the burden of proof in a hearing
on a challenge to the immediate
effectiveness of an order, and (2) the
authority of the presiding officer to call
for live testimony in a hearing on a
challenge to the immediate effectiveness
of an order. In developing these
amendments to 10 CFR 2.202, the NRC
reviewed the way in which the Board
has interpreted the burden of proof in
hearings on challenges to the immediate
effectiveness of an order. The NRC also
reviewed its current regulations and
practices regarding the authority of the
presiding officer to call for live
testimony in hearings on challenges to
the immediate effectiveness of an order.
This final rule also makes conforming
amendments to 10 CFR 150.2 by adding
a cross reference to 10 CFR 61.9b and
replacing the cross reference to 10 CFR
71.11 with a cross reference to 10 CFR
71.8. These conforming amendments are
necessary because when the NRC first
promulgated the Deliberate Misconduct
Rule in 1991, it failed to list 10 CFR
61.9b as a cross reference in 10 CFR
150.2; and, although the NRC listed 10
CFR 71.11, which at the time was the 10
CFR part 70 Deliberate Misconduct
Rule, as a cross reference in 10 CFR
150.2, the NRC later redesignated the
provision as 10 CFR 71.8 and failed to
make a conforming amendment to
update 10 CFR 150.2.
As discussed further in the following
sections, the Commission is not
adopting in this final rule the previously
proposed amendment to the Deliberate
Misconduct Rule to incorporate the
concept of deliberate ignorance as an
additional basis upon which the NRC
can take enforcement action against an
individual for violating the rule.
Immediately Effective Orders
The NRC’s procedures to initiate
formal enforcement action are found in
subpart B of 10 CFR part 2. These
regulations include 10 CFR 2.202,
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‘‘Orders.’’ An order is a written NRC
directive to modify, suspend, or revoke
a license; to cease and desist from a
given practice or activity; or to take
another action as appropriate.10 The
Commission’s statutory authority to
issue an order is Section 161 of the
AEA.11 The Commission may issue
orders in lieu of or in addition to civil
penalties.12 When the Commission
determines that the conduct that caused
a violation was willful or that the public
health, safety, or interest requires
immediate action, the Commission may
make orders immediately effective,
meaning the subject of the order does
not have an opportunity for a hearing
before the order goes into effect.13
Making enforcement orders immediately
effective has been an integral part of 10
CFR 2.202 since 1962, and Section 9(b)
of the Administrative Procedure Act
(APA), 5 U.S.C. 558(c), expressly
authorizes immediately effective orders.
On the same day that the Commission
published the 1990 proposed Deliberate
Misconduct Rule, ‘‘Willful Misconduct
by Unlicensed Persons,’’ 14 it also
published a related proposed rule,
‘‘Revisions to Procedures to Issue
Orders,’’ 15 that would expressly allow
the Commission to issue orders to
unlicensed persons. The Commission
may issue these orders ‘‘when such
persons have demonstrated that future
control over their activities subject to
the NRC’s jurisdiction is deemed to be
necessary or desirable to protect public
health and safety or to minimize danger
to life or property or to protect the
common defense and security.’’ 16 This
proposed rule concerned amendments
to 10 CFR 2.202 and other 10 CFR part
2 provisions.17 At the time of these
proposed rules, the Commission’s
regulations only authorized the issuance
of an order to a licensee. Therefore, the
intent of the 1990 proposed Deliberate
Misconduct Rule and its companion
proposed rule was to establish a
mechanism to issue ‘‘an order . . . to an
unlicensed person who willfully causes
a licensee to be in violation of
Commission requirements or whose
willful misconduct undermines, or calls
into question, the adequate protection of
the public health and safety in
connection with activities regulated by
the NRC under the [AEA].’’ 18 These
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10 10
CFR 2.202(a).
U.S.C. 2201.
12 Section 2.3.5 of the NRC Enforcement Policy
(2013) (ADAMS Accession No. ML13228A199).
13 10 CFR 2.202(b).
14 55 FR 12374; April 3, 1990.
15 55 FR 12370; April 3, 1990.
16 Id. at 12371.
17 Id. at 12373–74.
18 Id. at 12372.
11 42
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proposed changes were adopted, with
some modifications, in the 1991 final
Deliberate Misconduct Rule.19
Specifically, the 1991 final Deliberate
Misconduct Rule amended 10 CFR
2.202 and other provisions of 10 CFR
part 2 (10 CFR 2.1, 2.201, 2.204, 2.700,
and appendix C), to authorize the
issuance of an order to unlicensed
persons otherwise subject to the NRC’s
jurisdiction.
On July 5, 1990, the Commission
published another proposed rule that
would make additional changes to 10
CFR 2.202.20 These additional changes
pertained to immediately effective
orders. Primarily, the July 5, 1990,
proposed rule would have required that
challenges to immediately effective
orders be heard expeditiously. The
statement of considerations for the July
5, 1990, proposed rule noted that ‘‘the
Commission believes that a proper
balance between the private and
governmental interests involved is
achieved by a hearing conducted on an
accelerated basis.’’ 21 The statement of
considerations also stated that a
‘‘motion to set aside immediate
effectiveness must be based on one or
both of the following grounds: The
willful misconduct charged is
unfounded or the public health, safety
or interest does not require the order to
be made immediately effective.’’ 22
In addition, the July 5, 1990, proposed
rule provided the following statement
regarding the respective burdens of a
party filing a motion to challenge the
immediate effectiveness of an
immediately effective order and of the
NRC staff:
The burden of going forward on the
immediate effectiveness issue is with the
party who moves to set aside the immediate
effectiveness provision. The burden of
persuasion on the appropriateness of
immediate effectiveness is on the NRC staff.23
After receiving public comments on the
July 5, 1990, proposed rule, the
Commission published a final rule on
May 12, 1992.24 The Commission
acknowledged in the May 12, 1992, final
rule that ‘‘an immediately effective
order may cause a person to suffer loss
of employment while the order is being
adjudicated’’ but recognized that the
effects of health and safety violations
are paramount over an individual’s right
of employment.25 Accordingly, the final
rule amended 10 CFR 2.202(c) ‘‘to allow
19 56
20 55
FR 40664; August 15, 1991.
FR 27645.
21 Id.
22 Id.
23 Id.
at 27646.
FR 20194.
25 Id. at 20195.
24 57
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63411
early challenges to the immediate
effectiveness aspect of immediately
effective orders.’’ 26 The final rule also
provided for an expedited hearing on
both the merits of the immediately
effective order and a challenge to set
aside immediate effectiveness. The
presiding officer in an immediate
effectiveness challenge must dispose of
a person’s motion to set aside the
immediate effectiveness of the order
‘‘expeditiously,’’ generally within 15
days.27 Therefore, the Commission
struck a balance between the
governmental interests in protecting
public health and safety and an interest
in fairness by requiring that challenges
to immediately effective orders be heard
expeditiously.
Burden of Going Forward and Burden of
Persuasion
In opposing the immediate
effectiveness aspect of an order, the
party subject to the order, or
respondent, must initiate the proceeding
by filing affidavits and other evidence
that state that the order and the NRC
staff’s determination that it is necessary
to make the order immediately effective
‘‘is not based on adequate evidence but
on mere suspicion, unfounded
allegations, or error.’’ 28 The
respondent’s obligation to challenge the
order is known as the ‘‘burden of going
forward.’’ 29 Section 2.202, however, has
been interpreted to mean that the NRC
staff bears the ‘‘burden of persuasion’’ to
demonstrate that the order itself, and
the immediate effectiveness
determination, are supported by
‘‘adequate evidence.’’ 30 In a 2005
proceeding, the Board described what
the NRC staff must prove, stating,
[T]he staff must satisfy a two-part test: It
must demonstrate that adequate evidence—
i.e., reliable, probative, and substantial (but
not preponderant) evidence—supports a
conclusion that (1) the licensee violated a
Commission requirement (10 CFR
2.202(a)(1)), and (2) the violation was
‘willful,’ or the violation poses a risk to ‘the
public health, safety, or interest’ that requires
immediate action (id. § 2.202(a)(5)).31
Although Mr. Geisen never challenged
the immediate effectiveness of the
Commission’s order, one of the Board’s
judges raised the concern that 10 CFR
2.202(c)(2)(i) could be interpreted to
place the burden of persuasion on the
26 Id.
at 20194.
at 20196. See also 10 CFR 2.202(c)(2)(i).
28 10 CFR 2.202(c)(2)(i).
29 United Evaluation Servs, Inc., LBP–02–13, 55
NRC 351, 354 (2002).
30 Id.
31 Safety Light Corp. (Bloomsburg, Pennsylvania
Site), LBP–05–02, 61 NRC 53, 61 (2005) (emphasis
in original).
27 Id.
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party subject to the order to show that
the order is based on mere suspicion,
unfounded allegations, or error.32 This
final rule clarifies that the burden of
persuasion is the obligation of the NRC
staff, not the party subject to the order.
Authority of the Presiding Officer to
Order Live Testimony
The July 5, 1990, proposed rule’s
statement of considerations
contemplated the possibility of an
evidentiary hearing as part of a
challenge to immediate effectiveness:
It is expected that the presiding officer
normally will decide the question of
immediate effectiveness solely on the basis of
the order and other filings on the record. The
presiding officer may call for oral argument.
However, an evidentiary hearing is to be held
only if the presiding officer finds the record
is inadequate to reach a proper decision on
immediate effectiveness. Such a situation is
expected to occur only rarely.33
The May 12, 1992, final rule, however,
simply stated that ‘‘[t]he presiding
officer may call for oral argument but is
not required to do so.’’ 34 Section 2.319
outlines the presiding officer’s authority
to ‘‘conduct a fair and impartial hearing
according to law, and to take
appropriate action to control the
prehearing and hearing process, to avoid
delay and maintain order,’’ including
the power to examine witnesses, but
this power is not specified in 10 CFR
2.202. This final rule clarifies the
presiding officer’s authority to order live
testimony on challenges to the
immediate effectiveness of orders.
II. Discussion
Immediately Effective Orders
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This rule amends 10 CFR 2.202(c)(2)
to clarify that in any challenge to the
immediate effectiveness of an order, the
NRC staff bears the burden of
persuasion and the party challenging
the order bears the burden of going
forward.35 Specifically, the rule states
32 Geisen, ‘‘Additional Views of Judge Farrar,’’
LBP–09–24, 70 NRC at 801 n.12 (‘‘To succeed under
the terms of [10 CFR 2.202(c)(2)(i)], the challenge
brought by the Order’s target must show that ‘the
order, including the need for immediate
effectiveness, is not based on adequate evidence but
on mere suspicion, unfounded allegations, or error.’
In addition to having the burden on immediate
effectiveness, the target is apparently expected to
address the merits at that point as well, as is
indicated by the next sentence, which requires the
challenge to ‘state with particularity the reasons
why the order is not based on adequate evidence’
and to ‘be accompanied by affidavits or other
evidence relied on.’ 10 CFR 2.202(c)(2)(i). All in 20
days, unless extended. Id. § 2.202(a)(2).’’) (emphasis
in the original).
33 55 FR 27645–46.
34 57 FR at 20196.
35 The party challenging the order has the
obligation to initiate the proceeding, namely, by
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that the NRC staff must show that (1)
adequate evidence supports the grounds
for the order and (2) immediate
effectiveness is warranted.36
This rule further amends 10 CFR
2.202(c)(2) to confirm the presiding
officer’s authority to order live
testimony, including cross examination
of witnesses, in hearings on challenges
to the immediate effectiveness of orders
if the presiding officer concludes that
taking live testimony would assist in its
decision on the motion. Similarly, the
rule allows any party to the proceeding
to file a motion requesting the presiding
officer to order live testimony. The
amendments allow the NRC staff, in
cases where the presiding officer orders
live testimony, the option of presenting
its response through live testimony
rather than a written response made
within 5 days of its receipt of the
motion. The NRC does not anticipate
that permitting the presiding officer to
allow live testimony would cause delay,
and even if it were to cause delay,
public health and safety would not be
affected because the immediately
effective order would remain in effect
throughout the hearing on immediate
effectiveness.
The rule also amends 10 CFR
2.202(c)(2) to clarify that the presiding
officer shall conduct any live testimony
pursuant to its powers in 10 CFR 2.319,
except that no subpoenas, discovery, or
referred rulings or certified questions to
the Commission shall be permitted for
this purpose. Finally, the rule amends
10 CFR 2.202(c)(2) by dividing the
paragraph into smaller paragraphs,
adding a cross reference to 10 CFR
2.202(a)(5) (the regulation that
authorizes the Commission to make an
order immediately effective), and
making other minor edits to improve
clarity and readability.
Conforming Amendments
Section 150.2, ‘‘Scope,’’ provides
notice to Agreement State licensees
conducting activities under reciprocity
in areas of NRC jurisdiction that they
are subject to the applicable NRC
Deliberate Misconduct Rule provisions.
When the NRC first promulgated the
Deliberate Misconduct Rule in 1991, it
failed to list 10 CFR 61.9b as a cross
reference in 10 CFR 150.2. At the time,
10 CFR 150.2 listed 10 CFR 30.10, 40.10,
filing the appropriate motion under 10 CFR
2.202(c)(2)(i). This motion ‘‘must state with
particularity the reasons why the order is not based
on adequate evidence and must be accompanied by
affidavits or other evidence relied on.’’ 10 CFR
2.202(c)(2)(i).
36 The Administrative Procedure Act provides
‘‘[e]xcept as otherwise provided by statute, the
proponent of a rule or order has the burden of
proof.’’ 5 U.S.C. 556(d).
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and 70.10 as the Deliberate Misconduct
Rule provisions applicable to
Agreement State licensees conducting
activities under reciprocity in areas of
NRC jurisdiction.
On January 13, 1998, the NRC revised
its regulations to extend the Deliberate
Misconduct Rule to include applicants
for or holders of certificates of
compliance issued under 10 CFR part
71, ‘‘Packaging and Transportation of
Radioactive Material.’’ 37 This rule
designated the 10 CFR part 71
Deliberate Misconduct Rule provision as
10 CFR 71.11.38 The NRC made a
conforming amendment to 10 CFR 150.2
by listing 10 CFR 71.11 as a cross
reference.39 The NRC later redesignated
the provision as 10 CFR 71.8 40 but did
not make a conforming amendment to
update the cross reference in 10 CFR
150.2. The current 10 CFR 150.2 rule
text still lists the 10 CFR part 71
Deliberate Misconduct Rule provision as
10 CFR 71.11.
This rule makes conforming
amendments to 10 CFR 150.2 by adding
a cross reference to 10 CFR 61.9b and
deleting the cross reference to 10 CFR
71.11 and replacing it with a cross
reference to 10 CFR 71.8.
III. Opportunities for Public
Participation
The proposed rule was published on
February 11, 2014, for a 90-day public
comment period that ended on May 12,
2014.41
IV. Public Comment Analysis
The NRC received comments from six
commenters: The Nuclear Energy
Institute, Inc. (NEI), the National
Association of Criminal Defense
Lawyers (NACDL), STARS Alliance LLC
(STARS), Hogan Lovells LLP (Hogan
Lovells), Troutman Sanders LLP
(Troutman Sanders), and an individual,
Mr. James Lieberman. All six provided
comments on the proposed amendment
to the Deliberate Misconduct Rule
incorporating the concept of deliberate
ignorance. One commenter, Mr.
Lieberman, supported the amendment.
The other five commenters opposed the
amendment. All comments are
summarized in this section, by topic.
Additionally, two commenters (NEI and
STARS) provided comments on the
proposed amendments to 10 CFR
37 63
FR 1890.
at 1899.
39 Id. at 1901.
40 In a 2004 rulemaking amending its regulations
concerning the packaging and transport of
radioactive materials, the NRC renumbered 10 CFR
71.11 to 10 CFR 71.8 (69 FR 3698, 3764, 3790;
January 26, 2004).
41 79 FR 8097.
38 Id.
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2.202(c) concerning the immediate
effectiveness of orders. The NRC
received no comments on the proposed
amendments to 10 CFR 150.2.
Comments Concerning Deliberate
Ignorance
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Comment 1: Confusion and Practical
Difficulties Associated With
Distinguishing Between Deliberate
Ignorance and Carelessness,
Recklessness, or Negligence
The NEI, NACDL, STARS, Hogan
Lovells, and Troutman Sanders
commented that deliberate ignorance is
an inherently vague and highly
subjective criminal knowledge standard
and that distinguishing deliberate
ignorance from other, non-deliberate
states of mind, such as carelessness,
recklessness, or negligence, would be
difficult in practice. These commenters
expressed concern that adoption of the
deliberate ignorance standard into the
NRC’s regulations may confuse NRC
staff and could possibly result in
enforcement action against individuals
who do not commit deliberate
violations.
Specifically, Hogan Lovells expressed
concern that NRC staff would have
difficulty assessing what an individual
‘‘subjectively believed’’ and whether the
individual deliberately took action to
‘‘avoid learning’’ a material fact. The
NEI commented that the ‘‘complex,
legalistic deliberate ignorance standard
would be difficult to apply and would
promote unnecessary and wasteful
litigation without a counterbalancing
benefit to the public.’’ The NACDL
expressed concern that the ‘‘theoretical
distinction between a person who is
deliberately ignorant and one who is
reckless or negligent’’ would be ‘‘almost
impossible to maintain’’ in the NRC
enforcement setting. As additional
support for these concerns, NEI, STARS,
and Hogan Lovells stated that legal
scholars and courts, including the U.S.
Court of Appeals for the District of
Columbia Circuit (D.C. Circuit), have
cautioned that a ‘‘deliberate ignorance’’
jury instruction in Federal criminal
trials should only be used sparingly
because of the heightened risk that
defendants may be inadvertently or
impermissibly convicted on a lesser
basis than deliberate ignorance, such as
recklessness or negligence. The NACDL,
NEI, and Troutman Sanders also argued
that in the majority of cases evidence
used to support a finding of deliberate
ignorance would also serve as
circumstantial evidence of actual
knowledge, thereby further diminishing
the utility of the proposed rule.
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One commenter, Mr. Lieberman,
expressed support for the incorporation
of the deliberate ignorance standard
because the text of the rule ‘‘clearly’’
distinguished deliberate ignorance from
persons who act with recklessness or
careless indifference. Mr. Lieberman
recommended that the Commission
provide several hypothetical examples
of how and under what circumstances
the deliberate ignorance standard might
be applied in the future to more clearly
explain how the NRC staff would
differentiate between deliberate
ignorance and careless disregard in
practice.
NRC Response: The Commission
agrees with the comments expressing
concern that the difficulties in
implementing the deliberate ignorance
standard would likely outweigh its
corresponding benefits. The text of the
proposed rule contains multiple
subjective elements that would require
NRC staff to assess and demonstrate the
subjective belief for an individual’s
actions or inactions. The Commission
believes the text of the proposed rule
correctly defines ‘‘deliberate ignorance’’
in such a way as to distinguish it from
careless disregard or other, nondeliberate standards.42 However, after
further consideration of the difficulties
in assessing the facts of a case against
this separate intent standard, the
Commission has decided not to adopt
its proposed amendment to incorporate
a deliberate ignorance standard into the
Deliberate Misconduct Rule. In this
regard, the NRC staff already assesses
cases against two intent standards
cognizable in our enforcement process—
deliberateness involving actual
knowledge, and all other forms of
willfulness, including careless
disregard. Careless disregard is different
only in degree from the new standard of
deliberate ignorance and could frustrate
the efficiency of the enforcement
process, at least initially, until guidance
were issued and enforcement
experience established. The
Commission also anticipates that, in
most NRC enforcement cases, evidence
supporting deliberate ignorance would
also serve as circumstantial evidence
supporting actual knowledge, further
diminishing the utility of the proposed
rule at this time.43 Multiple Federal
42 The proposed rule text mirrored the definition
provided by the United States Supreme Court in
Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct.
2060 (2011).
43 See, e.g., United States v. Arbizo, 833 F.2d 244,
247, 248–49 (10th Cir. 1987) (‘‘One can in fact not
know many detailed facts but still have enough
knowledge to demonstrate consciousness of guilty
conduct sufficient to satisfy the ‘knowing’ element
of the crime . . . Arbizo’s case presents evidence
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circuits have characterized deliberate
ignorance jury instructions as means to
properly inform juries that a ‘‘charade of
ignorance’’ can serve as circumstantial
proof of guilty knowledge.44 Therefore,
the benefits associated with the
deliberate ignorance standard would
likely not outweigh the practical
difficulties of its implementation,
particularly given that the Commission
expects that cases where evidence
supports a deliberate ignorance finding
but not actual knowledge will be rare.
The Commission acknowledges Mr.
Lieberman’s support for the rule and, as
previously stated, agrees that the text of
the proposed rule accurately
distinguishes deliberate ignorance from
non-deliberate standards, including
recklessness, negligence, and
carelessness. However, for the reasons
previously stated, the Commission is
not adopting in this final rule the
proposed amendment to the Deliberate
Misconduct Rule.
Comment 2: Lack of a Compelling
Justification
The NEI, NACDL, STARS, Hogan
Lovells, and Troutman Sanders all
commented that the proposed rule
failed to provide a compelling
justification for incorporating the
deliberate ignorance standard into the
Deliberate Misconduct Rule. Several of
these commenters stated that the only
justification that the NRC provided for
expanding the scope of the rule was the
NRC staff’s inability to invoke collateral
estoppel in the Geisen case. These
commenters stated that expanding the
Deliberate Misconduct Rule cannot be
justified by a single case in the
Deliberate Misconduct Rule’s 25-year
history and that to fashion a rule to fit
a single case is both unnecessary and
bad policy. The NEI commented that the
Commission should not view the Geisen
proceedings as illustrative of an
additional or unfair ‘‘burden’’ that the
NRC staff must overcome in deliberate
misconduct enforcement cases. Instead,
the case simply illustrated the NRC
staff’s responsibility in carrying its
burden when issuing an enforcement
order and that the NRC should not be
able to dispense with this responsibility
by amending the Deliberate Misconduct
Rule.
The NEI and Hogan Lovells also
argued that the statement in the
proposed rule that ‘‘deficiencies in the
supporting both actual knowledge and deliberate
avoidance of knowledge of some details of the
transaction, either of which justify the [guilty]
verdict . . . .’’).
44 See, e.g., U.S. v. Conner, 537 F.3d 480, 486 (5th
Cir. 2008); U.S. v. Delreal-Ordones, 213 F.3d 1263,
1269 (10th Cir. 2000).
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Deliberate Misconduct Rule became
apparent’’ in the Geisen case was
incorrect because the Geisen case was
not a deliberate ignorance case. Rather,
the NRC’s order only alleged that Mr.
Geisen had actual knowledge of the
falsity of the statements that he
submitted to the NRC, and that the
Atomic Safety and Licensing Board
agreed that the case was only an actual
knowledge case. Therefore, according to
the commenters, the NRC should not
use the Geisen case as a basis for the
rule. The commenters noted that, when
promulgating the original Deliberate
Misconduct Rule in 1991, the
Commission stated that the range of
actions subject to the rule was not
expected to ‘‘differ significantly’’ from
those that might subject an individual to
criminal prosecution, and the
commenters noted that one case in
nearly 25 years does not rise to the level
of a ‘‘significant’’ difference.
NRC Response: The Commission
disagrees with this comment. Although
the Commission recognizes that the
benefits of the rule would be limited
because it will likely prove decisive in
few cases, the Commission disagrees
with the comment that the agency
lacked adequate justification to consider
modification of the regulations to
address deliberate ignorance. When
promulgating the Deliberate Misconduct
Rule in 1991, the Commission stated
that deliberate misconduct is a
significant and serious matter that poses
a distinct threat to public health and
safety.45 The NRC’s inability to invoke
collateral estoppel in the Geisen
proceeding was not the sole justification
for proposing to amend the Deliberate
Misconduct Rule. Rather, the
Commission has always considered
willful violations of NRC requirements
to be of particular concern because the
NRC’s regulatory program is dependent
on licensees and their contractors,
employees, and agents to act with
integrity and communicate with candor.
Therefore, the outcome of the Geisen
proceeding prompted the Commission
to reevaluate the Deliberate Misconduct
Rule.
The Commission also disagrees with
the comment that the Geisen case was
not a deliberate ignorance case. While
the NRC staff did allege only actual
knowledge throughout the enforcement
proceeding, the NRC staff did not
pursue a deliberate ignorance theory
because it conceded deliberate
ignorance was not a basis upon which
it could pursue enforcement action
under the Deliberate Misconduct Rule
45 56
FR 40664, 40674; August 15, 1991.
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as currently written.46 Conversely,
DOJ’s parallel criminal prosecution of
Mr. Geisen in Federal court was based
on alternate theories of actual
knowledge or deliberate ignorance. The
district court provided the deliberate
ignorance jury instruction, and Mr.
Geisen was convicted on a general
verdict. On appeal to the U.S. Court of
Appeals for the Sixth Circuit (Sixth
Circuit), Mr. Geisen challenged the
district court’s decision to provide the
deliberate ignorance jury instruction.47
The Sixth Circuit reiterated that ‘‘a
deliberate ignorance instruction is
warranted to prevent a criminal
defendant from escaping conviction
merely by deliberately closing his eyes
to the obvious risk that he is engaging
in unlawful conduct,’’ but cautioned
that this instruction should be used
sparingly because of the heightened risk
of conviction based on mere negligence,
carelessness, or ignorance.48 Under this
standard, the court found the
instruction to be proper because the
district court’s instruction was a correct
statement of the law and included a
limiting instruction—that ‘‘carelessness,
or negligence, or foolishness on [the
defendant’s] part is not the same as
knowledge and is not enough to
convict’’ foreclosed the possibility that
the jury could erroneously convict
Geisen on the basis of negligence or
carelessness.49 Moreover, the court
found that the evidence supported a
conviction based on either actual
knowledge or deliberate ignorance.50
Had the deliberate ignorance standard
been incorporated into the NRC’s
Deliberate Misconduct Rule, collateral
estoppel would have been available to
the NRC staff in the Geisen matter.
As previously stated, the Commission
is not adopting the proposed
amendment to the Deliberate
Misconduct Rule because the practical
difficulties are expected to outweigh the
potential benefits gained from the rule.
Comment 3: Previous Rejection of the
Deliberate Ignorance Standard
The NEI stated that the proposed rule
would conflict with the Commission’s
decision in the 1991 Deliberate
Misconduct Rule to exclude from the
rule violations based on careless
disregard and negligence. Hogan Lovells
stated that the Commission rejected the
deliberate ignorance standard when it
46 See David Geisen, LBP–09–24, 70 NRC 676, 715
(2009); Geisen, CLI–10–23, 72 NRC 210, 251 (2010).
47 United States v. Geisen, 612 F.3d 471, 485 (6th
Cir. 2010).
48 Id. at 485–86 (citations and internal quotation
marks omitted).
49 Id.
50 Id. at 487.
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promulgated the original Deliberate
Misconduct Rule.
NRC Response: The Commission
disagrees with the comment. Although
the Commission is not adopting the
proposed amendment to the Deliberate
Misconduct Rule due to the practical
difficulties associated with applying the
deliberate ignorance standard, the
Commission disagrees with comments
suggesting that the deliberate ignorance
standard was previously analyzed and
explicitly rejected when the
Commission promulgated the original
Deliberate Misconduct Rule in 1991.
The commenter points to a single
sentence in the statement of
considerations for the proposed rule
that discussed ‘‘careless disregard,’’
which uses the phrase ‘‘a situation in
which an individual blinds himself or
herself to the realities of whether a
violation has occurred or will occur.’’ 51
The proposed rule and final rule did not
make any other reference related to
willful blindness or deliberate ignorance
and did not contain detailed discussion
on the standards.
The Commission eventually
eliminated ‘‘careless disregard’’ from the
final rule in response to public
comments, which Hogan Lovells
characterizes as the Commission’s
‘‘considered and intentional decision’’
to exclude deliberate ignorance from the
rule. However, the Commission
disagrees that this limited discussion
amounts to an express rejection of the
deliberate ignorance standard. In the
1991 final rule, the Commission did not
focus on the applicability of collateral
estoppel in a parallel criminal action,
which was one of the justifications for
the proposed rule. Further, rejection of
a proposal under previous rulemaking
would not prevent future Commissions
from reconsidering the matter and
reaching a different conclusion. As
previously stated, the NRC is not
adopting the proposed amendment to
the Deliberate Misconduct Rule over
concerns that practical difficulties with
its implementation are expected to
outweigh the potential benefits.
Comment 4: Unsettled Judicial
Precedent
The NEI, Hogan Lovells, and STARS
stated that the proposed rule is
premature because of unsettled judicial
precedent. The NEI and Hogan Lovells
cited as support the D.C. Circuit’s
statements in United States v. AlstonGraves about the use of the deliberate
ignorance standard.52 The NEI also
stated that the DC Circuit’s opinion
51 55
FR 12375; April 3, 1990.
F.3d 331 (D.C. Cir. 2006).
52 435
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should carry substantial weight in
deciding whether to adopt the deliberate
ignorance standard because the DC
Circuit is the only Federal circuit court
that always has jurisdiction and venue
to consider challenges to NRC
enforcement orders.
Additionally, NEI and Hogan Lovells
stated that the Supreme Court case
Global-Tech Appliances, Inc. v. SEB,
S.A., is not directly applicable because
it was a patent case, not a criminal case.
Therefore, as Justice Kennedy noted in
his dissent in the case, the Court was
not briefed on whether to endorse the
deliberate ignorance standard for all
criminal cases requiring the government
to prove knowledge.53 The NEI and
Hogan Lovells also noted that Federal
courts most commonly apply the
deliberate ignorance standard in drug
cases.
NRC Response: The Commission
disagrees with the comment. Although
the Commission is not adopting the
proposed amendment to the Deliberate
Misconduct Rule due to the practical
difficulties associated with applying the
deliberate ignorance standard, the
Commission disagrees that judicial
precedent in this area is unsettled such
that the Commission’s proposal to adopt
the deliberate ignorance standard is
premature. In the words of the Supreme
Court, the doctrine of willful blindness
is ‘‘well established’’ in the Federal
courts.54 The history of the deliberate
ignorance standard is quite long—the
concept has been endorsed and applied
in criminal cases for more than 100
years. The Supreme Court endorsed a
similar concept in 1899 in Spurr v.
United States.55 In 1976, the Ninth
Circuit in United States v. Jewell crafted
the modern formulation of the
deliberate ignorance standard that
Federal courts have since adopted and
applied.56 The concept of deliberate
ignorance is now widely accepted in the
Federal courts, which commonly give
and uphold deliberate ignorance jury
instructions.57
In Alston-Graves, the D.C. Circuit
ruled on the appropriateness of a
deliberate ignorance instruction and
found that the lower court committed
harmless error giving the instruction—
not because the instruction itself is
53 Global-Tech Appliances, Inc. v. SEB, S.A., 131
S. Ct. 2060, 2073 (2011) (Kennedy, J., dissenting).
54 Id. at 2068–69 (majority opinion).
55 See id. at 2069.
56 532 F.2d 697 (9th Cir. 1976). See also, e.g.,
United States v. Caminos, 770 F.2d 361, 365 (3d
Cir. 1985) (‘‘The charge, known as a ‘deliberate
ignorance’ charge, originated in United States v.
Jewell.’’).
57 Global-Tech, 131 S. Ct. at 2069; Alston-Graves,
435 F.3d at 338.
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improper but because in this particular
case the prosecution failed to present
sufficient evidence to support it.58 At no
point in Alston-Graves did the D.C.
Circuit reject the deliberate ignorance
standard. Indeed, the court
acknowledged that it had previously
supported the concept of deliberate
ignorance in dicta in a prior case.59
The Commission disagrees with the
comment that it should give the D.C.
Circuit’s opinion in Alston-Graves more
weight relative to other Federal circuits.
The Hobbs Act, which NEI cited as
providing the D.C. Circuit with
jurisdiction and venue over all
challenges to NRC enforcement orders,
also states that jurisdiction and venue is
proper in any court of appeals in which
the petitioner resides or has its principal
office.60 Non-licensed individuals
challenging enforcement actions could
file such challenges where they reside.
Therefore, the Commission believes that
it would be unwise to give additional
weight to the D.C. Circuit’s decision not
to fully embrace the deliberate
ignorance standard and relatively less
weight to every other Federal circuit,
which have each more fully embraced
the deliberate ignorance standard.61
Additionally, the Commission
disagrees with the comment that the
Supreme Court’s Global-Tech decision
is inapplicable. The Court
acknowledged that it was not briefed on
the question of whether to endorse the
deliberate ignorance standard for all
criminal cases requiring the government
to prove knowledge. In rebutting Justice
Kennedy’s dissent, the Court stated that
it could think of no reason to ‘‘protect
. . . parties who actively encourage
others to violate patent rights and who
take deliberate steps to remain ignorant
of those rights despite a high probability
that the rights exist and are being
infringed.’’ 62 The majority’s rationale
applies with equal force to nuclear
regulation. Moreover, although GlobalTech is a civil case, it relied on criminal
58 Alston-Graves,
435 F.3d at 341–42.
at 340 (citing United States v. Mellen, 393
F.3d 175, 181 (D.C. Cir. 2004)).
60 28 U.S.C. 2342(4), 2343.
61 The First, Third, Fifth, Sixth, Seventh, Eighth,
Ninth, Tenth, and Eleventh Circuit Courts of
Appeals have incorporated willful blindness or
deliberate ignorance into their pattern or model jury
instructions. Pattern or model jury instructions are
plain language formulations of case law that judges
may provide to juries as legal explanations. These
jury instructions are given legal weight through
their use in trials and subsequent approval of that
use on appeal. The Second Circuit, see, e.g., United
States v. Coplan, 703 F.3d 46 (2d Cir. 2012), and
Fourth Circuit, see, e.g., United States v. Poole, 640
F.3d 114 (4th Cir. 2011), have applied deliberate
ignorance or willful blindness in case law.
62 Global-Tech Appliances, Inc. v. SEB, S.A., 131
S. Ct. 2060, 2069 n.8 (2011).
59 Id.
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cases to distill a definition of deliberate
ignorance and several courts of appeals
have referenced or applied Global-Tech
in criminal jury instructions and
criminal sentencing.63 Additionally,
Federal circuits have approved
application of the deliberate ignorance
standard in a variety of criminal and
civil cases.64
As previously stated, the NRC is not
adopting the proposed amendment to
the Deliberate Misconduct Rule because
the practical difficulties with its
implementation would likely outweigh
the potential benefits.
Comment 5: Lack of Guidance
The NEI and STARS stated that the
NRC failed to issue draft guidance with
the proposed rule and should not make
the final rule effective until after the
NRC publishes draft guidance for public
comment and then finalizes that
guidance. The NEI stated that NRC
policy requires that the agency issue
draft guidance in parallel with proposed
rules, citing the SRM to SECY–11–0032,
‘‘Consideration of the Cumulative
Effects of Regulation in the Rulemaking
Process,’’ dated October 11, 2011
(ADAMS Accession No. ML112840466).
The NEI further stated that the final rule
should require the Director of the Office
of Enforcement to formally certify to the
Commission that he or she has reviewed
the staff’s application of deliberate
ignorance before issuing any violation
relying on the standard. The NEI also
suggested that the NRC provide
examples of circumstances that are
categorically excluded (i.e., safe
harbors) from enforcement on the basis
of deliberate ignorance.
Mr. Lieberman expressed support for
the proposed rule but also suggested
that the NRC provide hypothetical
examples of conduct that does and does
63 See, e.g., United States v. Goffer, 721 F.3d 113,
127–28 (2d Cir. 2013); United States v. Brooks, 681
F.3d 678, 702 n.19 (5th Cir. 2012); United States v.
Butler, 646 F.3d 1038, 1041 (8th Cir. 2011).
64 See, e.g., United States v. Goffer, 721 F.3d 113,
(2d Cir. 2013) (upholding a deliberate ignorance
jury instruction in a case involving charges of
conspiracy to commit securities fraud and securities
fraud); United States v. Yi, 704 F.3d 800 (9th Cir.
2013) (upholding a deliberate ignorance jury
instruction in a case involving a charge of
conspiracy to violate the Clean Air Act); United
States v. Brooks, 681 F.3d 678 (5th Cir. 2012)
(affirming provision of the deliberate ignorance jury
instruction in a case involving charges of false
reporting of natural gas trades in violation of the
Commodity Exchange Act and the federal wire
fraud statute); United States v. Jinwright, 683 F.3d
471 (4th Cir. 2012) (finding the provision of the
deliberate ignorance instruction was not an abuse
of discretion in a case involving charges of a
conspiracy to defraud and tax evasion); Tommy
Hilfiger Licensing, Inc. v. Goody’s Family Clothing,
Inc., 2003 WL 22331254 (N.D. Ga. 2003) (applying
a deliberate ignorance standard to a Section 1117
trademark infringement claim).
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not satisfy the deliberate ignorance
standard in the statement of
considerations for the final rule.
NRC Response: The Commission is in
general agreement that, if adopted, the
rule would benefit from the
development of implementing guidance.
However, as stated previously, the
Commission is has decided not to adopt
the proposed amendments to the
Deliberate Misconduct Rule. Therefore,
there is no need for draft guidance as
requested by the commenters.
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Comment 6: Proposed Rule Would
Discourage Participation in Licensed
Activities and Is Not Necessary To Deter
Deliberate Misconduct
The NEI commented that the
proposed rule would discourage
participation in licensed activities and
nuclear employment and noted that the
Commission acknowledged this concern
in the 1991 Deliberate Misconduct Rule.
The NEI commented that the
proposed rule is not necessary for
deterrent effect because the risk of
criminal prosecution is a sufficient
deterrent. The commenter also stated
that, rather than expanding the
Deliberate Misconduct Rule to
encompass more individual behavior,
the NRC still has the option in
situations where an individual engages
in improper conduct beyond the reach
of the current Deliberate Misconduct
Rule to issue sanctions to the company
to address the NRC’s concerns.
NRC Response: The Commission
acknowledges the commenter’s concern
with respect to participation and
employment in the nuclear field and
notes that commenters raised and the
Commission responded to a similar
concern with respect to the 1991
Deliberate Misconduct Rule.65 The
Commission also acknowledges that the
agency continues to have the ability to
take enforcement action against a
licensee for an individual’s conduct that
results in a violation of NRC
requirements but does not amount to
deliberate misconduct. However, as
stated previously, the Commission has
decided not to adopt the proposed
changes to the Deliberate Misconduct
Rule because practical difficulties
outweigh the potential benefits.
Therefore the Commission did not reach
this issue.
Comments Concerning Immediately
Effective Orders
Citing statements from the Geisen
Board majority and the additional
statement from Judge Farrar, NEI and
STARS stated that immediately effective
65 56
FR 40675; August 15, 1991.
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orders should be issued less frequently
and be required to contain greater detail.
These commenters also stated that the
NRC staff should be required to release
the Office of Investigations report and
all evidence to the individual
challenging the order in such a
proceeding. The commenters also stated
that the Commission should further
define what constitutes ‘‘adequate
evidence’’ for immediate effectiveness
challenge purposes. The commenters
suggested revising 10 CFR 2.202(a)(5) to
remove the reference to ‘‘willful’’
violations because the NRC need not
make an order immediately effective
solely based on the violation’s
willfulness.
The NEI and STARS proposed further
changes to 10 CFR 2.202(c)(2)(ii) to
clarify that the person challenging an
immediately effective enforcement order
need not testify in such a hearing
because doing so may compromise his
or her Fifth Amendment right against
self-incrimination. The commenters also
advocated including a requirement
imposing more stringent requirements
and qualifications for persons testifying
on behalf of the NRC staff in challenges
to immediately effective orders.
Additionally, the commenters stated
that the final rule should include an
additional sentence stating that if the
presiding officer orders live testimony,
the parties may cross examine witnesses
when it would assist the presiding
officer’s decision on the motion to set
aside the immediate effectiveness of the
order.
The NEI and STARS commented that
the revision to 10 CFR 2.202(c)(2)(iii)
should also require that the NRC staff
reply to a motion in writing, rather than
providing the option to respond orally,
in order to prevent the staff’s ability to
‘‘ambush’’ or ‘‘sandbag’’ the individual
challenging the order. These
commenters also stated that the final
rule should make clear that NRC staff
cannot use this opportunity to expand
the scope of arguments set forth in the
original immediately effective order.
The NEI and STARS commented that
the final rule should revise 10 CFR
2.202(c)(2)(viii) to require that if the
presiding officer sets aside an
immediately effective order, the order
setting aside immediate effectiveness
will not be stayed automatically and
will only be stayed if the NRC staff files
and the Commission grants a motion for
a stay under 10 CFR 2.342.
NRC Response: The Commission
disagrees with these comments and
declines to adopt these changes to the
NRC’s process for issuing and
adjudicating immediately effective
orders. The proposed rule sought
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comments on the changes to 10 CFR
2.202(c); however, as stated in the
proposed rule, these changes were
intended to clarify evidentiary burdens
and the authority of the presiding
officer. The final rule clarifies that the
NRC staff bears the burden of
persuasion in hearings challenging the
immediate effectiveness of orders and
clarifies that the presiding officer has
authority pursuant to 10 CFR 2.319 to
order live testimony. The final rule also
clarifies how live testimony can be
requested and in what manner it may
take form. The final rule also contains
non-substantive changes intended to
improve the clarity and readability of 10
CFR 2.202 by dividing the lengthy
paragraph (c) into shorter paragraphs.
Several of the commenters’ proposed
changes are either already addressed in
this final rulemaking, or the current
rules are adequately flexible to address
their concerns without adopting their
proposed changes. For example, with
respect to the comment recommending
that if the presiding officer orders live
testimony, then the parties may cross
examine witnesses when it would assist
the presiding officer’s decision on the
motion to set aside the immediate
effectiveness of the order, the presiding
officer already has the power to order
cross examination pursuant to 10 CFR
2.319. Additionally, 10 CFR 2.319
currently describes the duty of the
presiding officer in an NRC adjudication
to conduct a fair and impartial hearing
and to take the necessary action to
regulate the course of the hearing and
the conduct of its participants. Parties
can direct concerns that the NRC staff is
inappropriately expanding the scope of
argument to the presiding officer for
resolution pursuant to this authority.
The Commission does not agree with
concerns that the NRC staff should reply
in writing in advance of live testimony
to prevent it from ‘‘ambushing’’ the
individual challenging the order. If
testimony of individuals is truthful and
complete, knowing the staff’s response
in advance of testifying should have
little bearing on its substance. Further,
with respect to the commenters’
constitutional concerns, it is well
established that the Fifth Amendment
privilege against self-incrimination can
be asserted in administrative
proceedings.66 Parties have invoked the
privilege in NRC enforcement
proceedings, including the Geisen
proceeding.67 Given the availability of
66 See Chavez v. Martinez, 538 U.S. 760, 770
(2003) (citing Kastigar v. United States, 406 U.S.
441, 453 (1972)).
67 See David Geisen, LBP–06–25, 64 NRC 367, 397
n.131 (2006). See also, e.g., Steven P. Moffitt, LBP–
06–05, 64 NRC 431, 433 n.2 (2006).
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the privilege in NRC enforcement
proceedings, the Commission declines
to adopt the proposed change.
As for the remaining comments, the
Commission appreciates the
commenters’ input on its process for
issuing and adjudicating immediately
effective orders, but additional
substantive changes to 10 CFR
2.202(c)(2) or proposals to significantly
overhaul its procedures for challenging
immediately effective orders are beyond
the scope of this rulemaking. The
Commission notes that the commenters
are able to submit these
recommendations as a petition for
rulemaking via the 10 CFR 2.802
petition for rulemaking process. The
Commission takes the commenters’
concerns with fairness in its
adjudicatory procedures seriously;
however, the proposed changes to 10
CFR 2.202 were limited to clarifying
changes to address specific concerns
regarding the application of 10 CFR
2.202(c) in certain circumstances. The
multiple additional procedural changes
that the commenters recommend would
be more appropriately addressed in the
context of a comprehensive assessment
of the NRC’s rules of practice and
procedure in 10 CFR part 2, which
would ensure compliance with the
NRC’s obligations under the
Administrative Procedure Act to allow
for notice and comment on proposed
rules before they are adopted. Adopting
the commenters’ proposed changes in
this rulemaking would not allow for
sufficient notice-and-comment
opportunities for other interested
parties, and the NRC therefore declines
to do so.
V. Section-by-Section Analysis
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Immediate Effectiveness of Orders Rule
Changes
Section 2.202
The rule makes several changes to 10
CFR 2.202(c)(2)(i). The rule revises 10
CFR 2.202(c)(2)(i) by dividing it into
several smaller paragraphs. The rule
revises paragraph 10 CFR 2.202(c)(2)(i)
to include only the first two sentences
of the current 10 CFR 2.202(c)(2)(i),
which concern the right of the party
subject to an immediately effective
order to challenge the immediate
effectiveness of that order. The rule
further revises the first sentence to add
a cross reference to 10 CFR 2.202(a)(5)
and make other minor, clarifying
editorial changes to that sentence.
The rule adds a new paragraph 10
CFR 2.202(c)(2)(ii), which allows any
party to file a motion with the presiding
officer requesting that the presiding
officer order live testimony. Paragraph
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10 CFR 2.202(c)(2)(ii) also authorizes
the presiding officer, on its own motion,
to order live testimony.
The rule redesignates the third
sentence of the current 10 CFR
2.202(c)(2)(i) as a new paragraph 10 CFR
2.202(c)(2)(iii), which authorizes the
NRC staff to present its response
through live testimony rather than a
written response in those cases where
the presiding officer orders live
testimony.
The rule adds a new paragraph 10
CFR 2.202(c)(2)(iv), which provides that
the presiding officer shall conduct any
live testimony pursuant to 10 CFR
2.319.
The rule makes a minor clarifying
change to 10 CFR 2.202(c)(2)(ii) and
redesignates that paragraph as 10 CFR
2.202(c)(2)(v).
The rule adds a new paragraph 10
CFR 2.202(c)(2)(vi), which clarifies that
the licensee or other person challenging
the immediate effectiveness of an order
bears the burden of going forward,
whereas the NRC staff bears the burden
of persuasion that adequate evidence
supports the grounds for the
immediately effective order and that
immediate effectiveness is warranted.
The rule makes minor clarifying
changes to the fourth and fifth sentences
of 10 CFR 2.202(c)(2)(i), which direct
the presiding officer’s expeditious
disposition of the motion to set aside
immediate effectiveness and prohibit
the presiding officer from staying the
immediate effectiveness of the order,
respectively, and redesignates those
sentences as a new paragraph 10 CFR
2.202(c)(2)(vii).
The rule makes minor clarifying
changes to the eighth sentence of 10
CFR 2.202(c)(2)(i), and redesignates the
sixth, seventh, and eighth sentences of
10 CFR 2.202(c)(2)(i) as new paragraph
10 CFR 2.202(c)(2)(viii). These
sentences (1) direct the presiding officer
to uphold the immediate effectiveness
of the order if it finds that there is
adequate evidence to support immediate
effectiveness, (2) address the final
agency action status of an order
upholding immediate effectiveness, (3)
address the presiding officer’s prompt
referral of an order setting aside
immediate effectiveness to the
Commission, and (4) states that the
order setting aside immediate
effectiveness will not be effective
pending further order of the
Commission.
Conforming Amendments to 10 CFR
150.2
This rule revises the last sentence of
10 CFR 150.2 by adding a cross
reference to 10 CFR 61.9b and replacing
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63417
the cross reference to 10 CFR 71.11 with
a cross reference to 10 CFR 71.8.
VI. Regulatory Flexibility Certification
Under the Regulatory Flexibility Act,
as amended (5 U.S.C. 605(b)), the NRC
certifies that this rule does not have a
significant economic impact on a
substantial number of small entities.
This final rule affects a number of
‘‘small entities’’ as defined by the
Regulatory Flexibility Act or the size
standards established by the NRC (10
CFR 2.810). However, as indicated in
Section VII, ‘‘Regulatory Analysis,’’
these amendments do not have a
significant economic impact on the
affected small entities. The NRC
received no comment submissions from
an identified small entity regarding the
impact of the proposed rule on small
entities.
VII. Regulatory Analysis
The amendments to the rule
governing hearings on challenges to
immediate effectiveness of orders do not
change the existing processes but
merely clarify the rule. The final rule
makes minor, conforming amendments
to 10 CFR 150.2. These amendments do
not result in a cost to the NRC or to
respondents in hearings on challenges
to immediate effectiveness of orders, but
a benefit accrues to the extent that
potential confusion over the meaning of
the NRC’s regulations is removed. The
NRC believes that this final rule
improves the efficiency of NRC
enforcement proceedings without
imposing costs on either the NRC or on
participants in these proceedings.
VIII. Backfitting and Issue Finality
The final rule revises the immediate
effectiveness provisions at 10 CFR 2.202
to state that the respondent bears the
burden of going forward with evidence
to challenge immediate effectiveness
and the NRC staff bears the burden of
persuasion on whether adequate
evidence supports immediate
effectiveness. The final rule also revises
10 CFR 2.202 to clarify that the
presiding officer is permitted to order
live testimony, either by its own motion,
or upon the motion of any party to the
proceeding.
The revisions to 10 CFR 2.202 clarify
the agency’s adjudicatory procedures
with respect to challenges to immediate
effectiveness of orders. These revisions
do not change, modify, or affect the
design, procedures, or regulatory
approvals protected under the various
NRC backfitting and issue finality
provisions. Accordingly, the revisions to
the adjudicatory procedures do not
represent backfitting imposed on any
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entity protected by backfitting
provisions in 10 CFR parts 50, 70, 72,
or 76, nor are they inconsistent with any
issue finality provision in 10 CFR part
52.
IX. Cumulative Effects of Regulation
Cumulative Effects of Regulation do
not apply to this final rule because it is
an administrative rule. The final rule
only (1) makes amendments to the
NRC’s regulations regarding challenges
to the immediate effectiveness of NRC
enforcement orders to clarify the burden
of proof and to clarify the authority of
the presiding officer to order live
testimony in resolving these challenges
and (2) makes conforming amendments
to 10 CFR 150.2.
X. Plain Writing
The Plain Writing Act of 2010 (Pub.
L. 111–274) requires Federal agencies to
write documents in a clear, concise, and
well-organized manner. The NRC has
written this document to be consistent
with the Plain Writing Act as well as the
Presidential Memorandum, ‘‘Plain
Language in Government Writing,’’
published June 10, 1998 (63 FR 31883).
XI. National Environmental Policy Act
The NRC has determined that the
issuance of this final rule relates to
enforcement matters and, therefore, falls
within the scope of 10 CFR 51.10(d). In
addition, the NRC has determined that
the issuance of this final rule is the type
of action described in categorical
exclusions at 10 CFR 51.22(c)(1)–(2).
Therefore, neither an environmental
impact statement nor an environmental
assessment has been prepared for this
rulemaking.
XII. Paperwork Reduction Act
This final rule does not contain any
new or amended collections of
information subject to the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.). Existing collections of
information were approved by the
Office of Management and Budget
(OMB), approval number 3150–0032.
Public Protection Notification
The NRC may not conduct or sponsor,
and a person is not required to respond
to, a collection of information unless the
document requesting or requiring the
collection displays a currently valid
OMB control number.
XIII. Congressional Review Act
The portion of this action amending
10 CFR 2.202 is a rule as defined in the
Congressional Review Act (5 U.S.C.
801–808). However, OMB has not found
it to be a major rule as defined in the
Congressional Review Act.
XIV. Compatibility of Agreement State
Regulations
Under the ‘‘Policy Statement on
Adequacy and Compatibility of
Agreement State Programs’’ approved by
the Commission on June 30, 1997, and
published in the Federal Register (62
FR 46517; September 3, 1997), this final
rule will be a matter of compatibility
between the NRC and the Agreement
States, thereby providing consistency
among the Agreement States and the
NRC requirements. The NRC staff
analyzed the rule in accordance with
the procedure established within Part
III, ‘‘Categorization Process for NRC
Program Elements,’’ of Handbook 5.9 to
Management Directive 5.9, ‘‘Adequacy
and Compatibility of Agreement State
Programs’’ (see 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 are those
program elements that are basic
radiation protection standards and
scientific terms and definitions that are
necessary to understand radiation
protection concepts. An Agreement
State should adopt Category A program
elements in an essentially identical
manner to provide uniformity in the
regulation of agreement material on a
nationwide basis. Compatibility
Category B are those program elements
that apply to activities that have direct
and significant effects in multiple
jurisdictions. An Agreement State
should adopt Category B program
elements in an essentially identical
manner. Compatibility Category C are
those program elements that do not
meet the criteria of Category A or B, but
the essential objectives of which an
Agreement State should adopt to avoid
conflict, duplication, gaps, or other
conditions that would jeopardize an
orderly pattern in the regulation of
agreement material on a nationwide
basis. An Agreement State should adopt
the essential objectives of the Category
C program elements. Compatibility
Category D are those program elements
that do not meet any of the criteria of
Category A, B, or C, and, therefore, do
not need to be adopted by Agreement
States for purposes of compatibility.
Health and Safety (H&S) are program
elements that are not required for
compatibility but are identified as
having a particular health and safety
role (i.e., adequacy) in the regulation of
agreement material within the State.
Although not required for compatibility,
the State should adopt program
elements in this H&S category based on
those of the NRC that embody the
essential objectives of the NRC program
elements because of particular health
and safety considerations. Compatibility
Category NRC are those program
elements that address areas of regulation
that cannot be relinquished to
Agreement States under the Atomic
Energy Act, as amended, or provisions
of 10 CFR. These program elements are
not adopted by Agreement States. The
following table lists the parts and
sections that will be revised and their
corresponding categorization under the
‘‘Policy Statement on Adequacy and
Compatibility of Agreement State
Programs.’’ The Agreement States have
3 years from the final rule’s effective
date, as noted in the Federal Register,
to adopt compatible regulations.
TABLE 1—COMPATIBILITY TABLE FOR FINAL RULE
Compatibility
Section
Change
Subject
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Existing
New
Part 2
2.202(c) .........................................
Revised ........................................
Orders ..........................................
NRC ..................
NRC.
D .......................
D.
Part 150
150.2 .............................................
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Revised ........................................
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Scope ...........................................
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XV. Voluntary Consensus Standards
The National Technology Transfer
and Advancement Act of 1995, Public
Law 104–113, requires that Federal
agencies use technical standards that are
developed by voluntary consensus
standards bodies unless the use of such
a standard is inconsistent with
applicable law or is otherwise
impractical. In this rule, the NRC is
clarifying two aspects of challenges to
the immediate effectiveness of NRC
enforcement orders: (1) The burden of
proof and (2) the authority of the
presiding officer to order live testimony
in resolving such a challenge. The NRC
is also making conforming amendments
to 10 CFR 150.2. This action does not
constitute the establishment of a
standard that contains generally
applicable requirements.
List of Subjects
10 CFR Part 2
Administrative practice and
procedure, Antitrust, Byproduct
material, Classified information,
Confidential business information;
Freedom of information, Environmental
protection, Hazardous waste, Nuclear
energy, Nuclear materials, Nuclear
power plants and reactors, Penalties,
Reporting and recordkeeping
requirements, Sex discrimination,
Source material, Special nuclear
material, Waste treatment and disposal.
10 CFR Part 150
Criminal penalties, Hazardous
materials transportation,
Intergovernmental relations, Nuclear
energy, Nuclear materials, Penalties,
Reporting and recordkeeping
requirements, Security measures,
Source material, Special nuclear
material.
For the reasons set out in the
preamble and under the authority of the
Atomic Energy Act of 1954, as amended;
the Energy Reorganization Act of 1974,
as amended; and 5 U.S.C. 552 and 553,
the NRC is adopting the following
amendments to 10 CFR parts 2 and 150
as follows:
PART 2—AGENCY RULES OF
PRACTICE AND PROCEDURE
1. The authority citation for part 2
continues to read as follows:
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■
Authority: Atomic Energy Act of 1954,
secs. 29, 53, 62, 63, 81, 102, 103, 104, 105,
161, 181, 182, 183, 184, 186, 189, 191, 234
(42 U.S.C. 2039, 2073, 2092, 2093, 2111,
2132, 2133, 2134, 2135, 2201, 2231, 2232,
2233, 2234, 2236, 2239, 2241, 2282); Energy
Reorganization Act of 1974, secs. 201, 206
(42 U.S.C. 5841, 5846); Nuclear Waste Policy
Act of 1982, secs. 114(f), 134, 135, 141 (42
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U.S.C. 10134(f), 10154, 10155, 10161);
Administrative Procedure Act (5 U.S.C. 552,
553, 554, 557, 558); National Environmental
Policy Act of 1969 (42 U.S.C. 4332); 44 U.S.C.
3504 note.
Section 2.205(j) also issued under Sec.
31001(s), Pub. L. 104–134, 110 Stat. 1321–
373 (28 U.S.C. 2461 note).
2. In § 2.202, revise paragraph (c)(2) to
read as follows:
■
§ 2.202
Orders.
*
*
*
*
*
(c) * * *
(2)(i) The licensee or other person to
whom the Commission has issued an
immediately effective order in
accordance with paragraph (a)(5) of this
section, may, in addition to demanding
a hearing, at the time the answer is filed
or sooner, file a motion with the
presiding officer to set aside the
immediate effectiveness of the order on
the ground that the order, including the
need for immediate effectiveness, is not
based on adequate evidence but on mere
suspicion, unfounded allegations, or
error. The motion must state with
particularity the reasons why the order
is not based on adequate evidence and
must be accompanied by affidavits or
other evidence relied on.
(ii) Any party may file a motion with
the presiding officer requesting that the
presiding officer order live testimony.
Any motion for live testimony must be
made in conjunction with the motion to
set aside the immediate effectiveness of
the order or any party’s response
thereto. The presiding officer may, on
its own motion, order live testimony.
The presiding officer’s basis for
approving any motion for, or ordering
on its own motion, live testimony shall
be that taking live testimony would
assist in its decision on the motion to
set aside the immediate effectiveness of
the order.
(iii) The NRC staff shall respond in
writing within 5 days of the receipt of
either a motion to set aside the
immediate effectiveness of the order or
the presiding officer’s order denying a
motion for live testimony. In cases in
which the presiding officer orders live
testimony, the staff may present its
response through live testimony rather
than a written response.
(iv) The presiding officer shall
conduct any live testimony pursuant to
its powers in § 2.319 of this part, except
that no subpoenas, discovery, or
referred rulings or certified questions to
the Commission shall be permitted for
this purpose.
(v) The presiding officer may, on
motion by the staff or any other party to
the proceeding, where good cause
exists, delay the hearing on the
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63419
immediately effective order at any time
for such periods as are consistent with
the due process rights of the licensee or
other person and other affected parties.
(vi) The licensee or other person
challenging the immediate effectiveness
of an order bears the burden of going
forward with evidence that the
immediately effective order is not based
on adequate evidence, but on mere
suspicion, unfounded allegations, or
error. The NRC staff bears the burden of
persuading the presiding officer that
adequate evidence supports the grounds
for the immediately effective order and
immediate effectiveness is warranted.
(vii) The presiding officer shall issue
a decision on the motion to set aside the
immediate effectiveness of the order
expeditiously. During the pendency of
the motion to set aside the immediate
effectiveness of the order or at any other
time, the presiding officer may not stay
the immediate effectiveness of the order,
either on its own motion, or upon
motion of the licensee or other person.
(viii) The presiding officer shall
uphold the immediate effectiveness of
the order if it finds that there is
adequate evidence to support immediate
effectiveness. An order upholding
immediate effectiveness will constitute
the final agency action on immediate
effectiveness. The presiding officer will
promptly refer an order setting aside
immediate effectiveness to the
Commission and such order setting
aside immediate effectiveness will not
be effective pending further order of the
Commission.
*
*
*
*
*
PART 150—EXEMPTIONS AND
CONTINUED REGULATORY
AUTHORITY IN AGREEMENT STATES
AND IN OFFSHORE WATERS UNDER
SECTION 274
3. The authority citation for part 150
continues to read as follows:
■
Authority: Atomic Energy Act of 1954,
secs. 11, 53, 81, 83, 84, 122, 161, 181, 223,
234, 274 (42 U.S.C. 2014, 2201, 2231, 2273,
2282, 2021); Energy Reorganization Act of
1974, sec. 201 (42 U.S.C. 5841); Nuclear
Waste Policy Act of 1982, secs. 135, 141 (42
U.S.C. 10155, 10161); 44 U.S.C. 3504 note.
4. 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
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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 13th day
of October, 2015.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2015–26590 Filed 10–19–15; 8:45 am]
BILLING CODE 7590–01–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
FOR FURTHER INFORMATION CONTACT:
[Docket No. FAA–2015–1985; Directorate
Identifier 2014–NM–214–AD; Amendment
39–18294; AD 2015–21–02]
RIN 2120–AA64
Airworthiness Directives; Bombardier,
Inc. Airplanes
Federal Aviation
Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule.
AGENCY:
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Assata Dessaline, Aerospace Engineer,
Avionics and Services Branch, ANE–
172, FAA, New York Aircraft
Certification Office (ACO), 1600 Stewart
Avenue, Suite 410, Westbury, NY
11590; telephone 516–228–7301; fax
516–794–5531.
SUPPLEMENTARY INFORMATION:
Discussion
We are adopting a new
airworthiness directive (AD) for certain
Bombardier, Inc. Model DHC–8–102,
–103, –106, –201, –202, –301, –311, and
–315 airplanes. This AD was prompted
by reports of un-annunciated failures of
the direct current (DC) starter generator,
which caused caution indicators of the
affected systems to illuminate and
prompted emergency descents and
landings. This AD requires replacing the
DC generator control units (GCUs) with
new GCUs and replacing the GCU label.
We are issuing this AD to prevent a low
voltage condition on the left main DC
bus, which, during critical phases of
flight, could result in the loss of flight
management, navigation, and
transponder systems, and could affect
continued safe flight.
DATES: This AD becomes effective
November 24, 2015.
The Director of the Federal Register
approved the incorporation by reference
of certain publications listed in this AD
as of November 24, 2015.
ADDRESSES: You may examine the AD
docket on the Internet at https://
www.regulations.gov/#!docket
Detail;D=FAA-2015-1985; or in person
at the Docket Management Facility, U.S.
Department of Transportation, Docket
Operations, M–30, West Building
SUMMARY:
Ground Floor, Room W12–140, 1200
New Jersey Avenue SE., Washington,
DC.
For service information identified in
this AD, contact Bombardier, Inc., QSeries Technical Help Desk, 123 Garratt
Boulevard, Toronto, Ontario M3K 1Y5,
Canada; telephone 416–375–4000; fax
416–375–4539; email thd.qseries@
aero.bombardier.com; Internet https://
www.bombardier.com. You may view
this referenced service information at
the FAA, Transport Airplane
Directorate, 1601 Lind Avenue SW.,
Renton, WA. For information on the
availability of this material at the FAA,
call 425–227–1221. It is also available
on the Internet at https://
www.regulations.gov by searching for
and locating Docket No. FAA–2015–
1985.
We issued a notice of proposed
rulemaking (NPRM) to amend 14 CFR
part 39 by adding an AD that would
apply to certain Bombardier, Inc. Model
DHC–8–102, –103, –106, –201, –202,
–301, –311, and –315 airplanes. The
NPRM published in the Federal
Register on June 25, 2015 (80 FR 36493).
Transport Canada Civil Aviation
(TCCA), which is the aviation authority
for Canada, has issued Canadian
Airworthiness Directive CF–2014–31R2,
dated November 11, 2014 (referred to
after this as the Mandatory Continuing
Airworthiness Information, or ‘‘the
MCAI’’), to correct an unsafe condition
for certain Bombardier, Inc. Model
DHC–8–102, –103, –106, –201, –202,
–301, –311, and –315 airplanes. The
MCAI states:
Four occurrences of un-annunciated failure
of the No. 1 Direct Current (DC) Starter
Generator prompted emergency descents and
landings resulting from the illumination of
numerous caution indications of the affected
systems. The functionality of the affected
systems such as Flight Management System,
Navigation, and transponder systems, were
reportedly reduced or lost. Investigation
determined the failure was a result of a low
voltage condition of the Left Main DC Bus.
During critical phases of flight, the loss of
these systems could affect continued safe
flight.
The original issue of this [Canadian] AD
mandated the modification [replacing certain
DC GCUs with new GCUs and replacing
PO 00000
Frm 00012
Fmt 4700
Sfmt 4700
labels] which introduces generator control
unit (GCU) undervoltage protection.
Revision 1 of this [Canadian] AD added a
GCU part number to the applicability of Part
III of this [Canadian] AD, in order to ensure
that all units are fitted with a warning label.
Revision 2 of this [Canadian] AD corrects
the GCU part number in the applicability of
Part III of this [Canadian] AD.
You may examine the MCAI in the AD
docket on the Internet at https://
www.regulations.gov/#!document
Detail;D=FAA-2015-1985-0003.
Comments
We gave the public the opportunity to
participate in developing this AD. We
received no comments on the NPRM (80
FR 36493, June 25, 2015) or on the
determination of the cost to the public.
Conclusion
We reviewed the available data and
determined that air safety and the
public interest require adopting this AD
as proposed, except for minor editorial
changes. We have determined that these
minor changes:
• Are consistent with the intent that
was proposed in the NPRM (80 FR
36493, June 25, 2015) for correcting the
unsafe condition; and
• Do not add any additional burden
upon the public than was already
proposed in the NPRM (80 FR 36493,
June 25, 2015).
Related Service Information Under 1
CFR Part 51
Bombardier has issued the following
service information.
• Service Bulletin 8–24–84, Revision
D, dated April 10, 2014, describes
incorporating Bombardier Modification
Summary (ModSum) 8Q101710 by
replacing the GCU with a new GCU, and
replacing the GCU label for airplanes
having certain Phoenix DC power GCU
part numbers.
• Service Bulletin 8–24–89, Revision
C, dated November 4, 2014, describes
incorporating Bombardier ModSum
8Q101925 by replacing the GCU with a
new GCU, and replacing the GCU label
for airplanes having certain Goodrich
DC power GCU part numbers.
This service information is reasonably
available because the interested parties
have access to it through their normal
course of business or by the means
identified in the ADDRESSES section of
this AD.
Costs of Compliance
We estimate that this AD affects 92
airplanes of U.S. registry.
We also estimate that it takes about 3
work-hours per product to comply with
the basic requirements of this AD. The
average labor rate is $85 per work-hour.
E:\FR\FM\20OCR1.SGM
20OCR1
Agencies
[Federal Register Volume 80, Number 202 (Tuesday, October 20, 2015)]
[Rules and Regulations]
[Pages 63409-63420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-26590]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 /
Rules and Regulations
[[Page 63409]]
NUCLEAR REGULATORY COMMISSION
10 CFR Parts 2 and 150
[NRC-2013-0132]
RIN 3150-AJ27
Hearings on Challenges to the Immediate Effectiveness of Orders
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is amending its
regulations regarding challenges to the immediate effectiveness of NRC
enforcement orders to clarify the burden of proof and to clarify the
authority of the presiding officer to order live testimony in resolving
these challenges.
DATES: This final rule is effective on November 19, 2015.
ADDRESSES: Please refer to Docket ID NRC-2013-0132 when contacting the
NRC about the availability of information for this final rule. You may
obtain publicly-available information related to this final rule by any
of the following methods:
Federal rulemaking Web site: Go to https://www.regulations.gov and search for Docket ID NRC-2013-0132. Address
questions about NRC dockets to Carol Gallagher; telephone: 301-415-
3463; email: Carol.Gallagher@nrc.gov. For technical questions contact
the individual listed in the FOR FURTHER INFORMATION CONTACT section of
this final rule.
NRC's Agencywide Documents Access and Management System
(ADAMS): You may obtain publicly-available documents online in the
ADAMS Public Documents collection at 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 (if it is available
in ADAMS) is provided the first time that it is mentioned in the
SUPPLEMENTARY INFORMATION section.
NRC's PDR: You may examine and purchase copies of public
documents at the NRC's PDR, Room 01-F21, One White Flint North, 11555
Rockville Pike, Rockville, Maryland 20852.
FOR FURTHER INFORMATION CONTACT: Esther Houseman, Office of the General
Counsel, telephone: 301-415-2267, email: Esther.Houseman@nrc.gov; or
Eric Michel, Office of the General Counsel, telephone: 301-415-1177,
email: Eric.Michel2@nrc.gov; U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001.
SUPPLEMENTARY INFORMATION:
Executive Summary
The U.S. Nuclear Regulatory Commission (NRC) is amending its
regulations regarding the issuance of immediately effective orders to
clarify the burden of proof in proceedings on challenges to the
immediate effectiveness of such orders and the authority of the
presiding officer in such proceedings to order live testimony. In NRC
enforcement proceedings, the recipient of an order ordinarily may
challenge the validity of that order before its terms become effective
at a later specified date. However, in certain circumstances, the NRC
may issue orders to regulated entities or individuals that are
``immediately effective,'' meaning the order's terms are effective upon
issuance and remain in effect even during the pendency of a challenge.
These amendments confirm that the recipient of the immediately
effective order has the burden to initiate a challenge regarding the
order's immediate effectiveness and present evidence that the order,
including the need for immediate effectiveness, is not based on
adequate evidence. The amendments also clarify that the NRC staff
ultimately bears the burden of persuasion that immediate effectiveness
is warranted. Additionally, these amendments confirm that the presiding
officer in a challenge to the immediate effectiveness of an order may
order live testimony, including cross examination of witnesses, if it
will assist in the presiding officer's decision. These are not
substantive changes to the agency's enforcement procedures, but rather
confirm existing burdens and presiding officer authority.
In this final rule, the Commission is not adopting the previously
proposed amendment \1\ that would have incorporated the concept of
``deliberate ignorance'' as an additional basis upon which the NRC
could take enforcement action against an individual for violating the
rule. The Commission agrees with public commenters' concern that the
subjectivity of the deliberate ignorance standard makes it difficult to
implement. This difficulty would make the enforcement process more
complex and burdensome, and any corresponding benefits would not
outweigh these disadvantages. This decision is discussed in more detail
in Section IV, ``Public Comment Analysis,'' of this document.
---------------------------------------------------------------------------
\1\ On February 11, 2014, the NRC published the proposed
amendments in a proposed rule entitled, ``Deliberate Misconduct Rule
and Hearings on Challenges to the Immediate Effectiveness of
Orders'' (79 FR 8097). The NRC changed the title of this final rule
to ``Hearings on Challenges to the Immediate Effectiveness of
Orders'' to more clearly reflect that the proposed changes to the
Deliberate Misconduct Rule were not adopted.
---------------------------------------------------------------------------
Table of Contents
I. Background
II. Discussion
III. Opportunities for Public Participation
IV. Public Comment Analysis
V. Section-by-Section Analysis
VI. Regulatory Flexibility Certification
VII. Regulatory Analysis
VIII. Backfitting and Issue Finality
IX. Cumulative Effects of Regulation
X. Plain Writing
XI. National Environmental Policy Act
XII. Paperwork Reduction Act
XIII. Congressional Review Act
XIV. Compatibility of Agreement State Regulations
XV. Voluntary Consensus Standards
I. Background
On January 4, 2006, the U.S. Nuclear Regulatory Commission (NRC)
issued an immediately effective order to Mr. David Geisen, a former
employee at the Davis-Besse Nuclear Power Station, barring him from
employment in the nuclear industry for 5 years.\2\ The order
[[Page 63410]]
charged Mr. Geisen with deliberate misconduct in contributing to the
submission of information to the NRC that he knew was not complete or
accurate in material respects. The U.S. Department of Justice (DOJ)
later obtained a grand jury indictment against Mr. Geisen on charges
under 18 U.S.C. 1001 for submitting false statements to the NRC.\3\ In
the criminal case, the judge gave the jury instructions under the
prosecution's two alternative theories: The jury could find Mr. Geisen
guilty if he either knew that he was submitting false statements or if
he acted with deliberate ignorance of their falsity. The jury found Mr.
Geisen guilty on a general verdict; that is, the jury found Mr. Geisen
guilty without specifying whether it found Mr. Geisen acted out of
actual knowledge or deliberate ignorance. The United States Court of
Appeals for the Sixth Circuit upheld Mr. Geisen's conviction on
appeal.\4\
---------------------------------------------------------------------------
\2\ David Geisen, LBP-09-24, 70 NRC 676 (2009), aff'd, CLI-10-
23, 72 NRC 210 (2010).
\3\ United States v. Geisen, 612 F.3d 471, 485-86 (6th Cir.
2010), cert. denied, 131 S. Ct. 1813 (2011), (citing United States
v. Geisen, 2008 WL 6124567 (N.D. Ohio May 2, 2008)).
\4\ Id. at 485-86.
---------------------------------------------------------------------------
In the parallel NRC enforcement proceeding, brought under the
agency's Deliberate Misconduct Rule, Sec. 50.5 of title 10 of the Code
of Federal Regulations (10 CFR), Mr. Geisen's criminal conviction
prompted the NRC's Atomic Safety and Licensing Board (the Board) to
consider whether Mr. Geisen was collaterally estopped \5\ from denying
the same wrongdoing in the NRC proceeding.\6\ The Board found and the
Commission upheld, on appeal, that collateral estoppel could not be
applied because the NRC's Deliberate Misconduct Rule did not include
deliberate ignorance and the general verdict in the criminal proceeding
did not specify whether the verdict was based on actual knowledge or
deliberate ignorance.\7\
---------------------------------------------------------------------------
\5\ Collateral estoppel precludes a defendant convicted in a
criminal proceeding from challenging in a subsequent civil
proceeding any facts that were necessary for the criminal
conviction. Collateral estoppel applies to quasi-judicial
proceedings such as enforcement hearings before the NRC. See, e.g.,
SEC v. Freeman, 290 F.Supp. 2d 401, 405 (S.D.N.Y. 2003) (``It is
settled that a party in a civil case may be precluded from
relitigating issues adjudicated in a prior criminal proceeding and
that the Government may rely on the collateral estoppel effect of
the conviction in support of establishing the defendant's liability
in the subsequent civil action.'') (citations omitted).
\6\ Geisen, LBP-09-24, 70 NRC at 709-26; see 10 CFR 50.5.
\7\ The Board stated that ``the [NRC] Staff flatly and
unmistakably conceded that the `deliberate ignorance' theory is not
embraced within the `deliberate misconduct' standard that governs
our proceedings.'' Geisen, LBP-09-24, 70 NRC at 715 (alteration
added). In its decision, the Commission stated ``[t]he distinction
between the court's `deliberate ignorance' standard and the [NRC's]
`deliberate misconduct' standard applied in this case is highly
significant, indeed, decisive. The Staff, when moving for collateral
estoppel, itself conceded that `the 6th Circuit's deliberate
ignorance instruction does not meet the NRC's deliberate misconduct
standard'.'' Geisen, CLI-10-23, 72 NRC at 251 (emphasis in the
original) (alteration added).
---------------------------------------------------------------------------
The lack of certainty as to the specific basis of the jury's
verdict was significant, because if the verdict was based on actual
knowledge, the Board could have applied collateral estoppel based on
the NRC's identical actual knowledge standard and the same facts in the
criminal case.\8\ However, because the general verdict could have been
based on deliberate ignorance, the Board could not apply collateral
estoppel, because the NRC does not recognize conduct meeting the
deliberate ignorance knowledge standard as deliberate misconduct. The
Commission affirmed the Board's decision.\9\ This outcome shows that
the Deliberate Misconduct Rule, as presently written, does not provide
for an enforcement action on the basis of deliberate ignorance and the
Board cannot apply collateral estoppel where a parallel DOJ criminal
prosecution proceeding may be based on a finding of deliberate
ignorance.
---------------------------------------------------------------------------
\8\ Geisen, CLI-10-23, 72 NRC at 249.
\9\ Id. at 254.
---------------------------------------------------------------------------
In the Staff Requirements Memorandum (SRM) to SECY-10-0074, ``David
Geisen, NRC Staff Petition for Review of LBP-09-24 (Aug. 28, 2009),''
dated September 3, 2010 (ADAMS Accession No. ML102460411), the
Commission directed the NRC's Office of the General Counsel (OGC) to
conduct a review of three issues: (1) How parallel NRC enforcement
actions and DOJ criminal prosecutions affect each other, (2) the
issuance of immediately effective enforcement orders in matters that
DOJ is also pursuing, and (3) the degree of knowledge required for
pursuing violations against individuals for deliberate misconduct. In
2011, OGC conducted the requested review and provided recommendations
to the Commission for further consideration. In response, in 2012, the
Commission directed OGC to develop a proposed rule that would
incorporate the deliberate ignorance standard into the Deliberate
Misconduct Rule. As part of this effort, the Commission directed OGC to
examine the definitions of deliberate ignorance from all Federal
circuit courts to aid in developing the most appropriate definition of
this term for the NRC. The Commission also directed OGC to clarify two
aspects of the regulations regarding challenges to immediate
effectiveness of NRC orders as part of this rulemaking: (1) The burden
of proof and (2) the authority of the presiding officer to order live
testimony in resolving such a challenge.
This final rule amends 10 CFR 2.202, which governs challenges to,
and the presiding officer's review of, the immediate effectiveness of
an order. Currently, the Commission may make orders immediately
effective under 10 CFR 2.202(a)(5) if it finds that the public health,
safety, or interest so requires or if willful conduct caused a
violation of the Atomic Energy Act of 1954, as amended (AEA), an NRC
regulation, license condition, or previously issued Commission order.
This final rule amends the NRC's regulations by clarifying the
following: (1) Which party bears the burden of proof in a hearing on a
challenge to the immediate effectiveness of an order, and (2) the
authority of the presiding officer to call for live testimony in a
hearing on a challenge to the immediate effectiveness of an order. In
developing these amendments to 10 CFR 2.202, the NRC reviewed the way
in which the Board has interpreted the burden of proof in hearings on
challenges to the immediate effectiveness of an order. The NRC also
reviewed its current regulations and practices regarding the authority
of the presiding officer to call for live testimony in hearings on
challenges to the immediate effectiveness of an order.
This final rule also makes conforming amendments to 10 CFR 150.2 by
adding a cross reference to 10 CFR 61.9b and replacing the cross
reference to 10 CFR 71.11 with a cross reference to 10 CFR 71.8. These
conforming amendments are necessary because when the NRC first
promulgated the Deliberate Misconduct Rule in 1991, it failed to list
10 CFR 61.9b as a cross reference in 10 CFR 150.2; and, although the
NRC listed 10 CFR 71.11, which at the time was the 10 CFR part 70
Deliberate Misconduct Rule, as a cross reference in 10 CFR 150.2, the
NRC later redesignated the provision as 10 CFR 71.8 and failed to make
a conforming amendment to update 10 CFR 150.2.
As discussed further in the following sections, the Commission is
not adopting in this final rule the previously proposed amendment to
the Deliberate Misconduct Rule to incorporate the concept of deliberate
ignorance as an additional basis upon which the NRC can take
enforcement action against an individual for violating the rule.
Immediately Effective Orders
The NRC's procedures to initiate formal enforcement action are
found in subpart B of 10 CFR part 2. These regulations include 10 CFR
2.202,
[[Page 63411]]
``Orders.'' An order is a written NRC directive to modify, suspend, or
revoke a license; to cease and desist from a given practice or
activity; or to take another action as appropriate.\10\ The
Commission's statutory authority to issue an order is Section 161 of
the AEA.\11\ The Commission may issue orders in lieu of or in addition
to civil penalties.\12\ When the Commission determines that the conduct
that caused a violation was willful or that the public health, safety,
or interest requires immediate action, the Commission may make orders
immediately effective, meaning the subject of the order does not have
an opportunity for a hearing before the order goes into effect.\13\
Making enforcement orders immediately effective has been an integral
part of 10 CFR 2.202 since 1962, and Section 9(b) of the Administrative
Procedure Act (APA), 5 U.S.C. 558(c), expressly authorizes immediately
effective orders.
---------------------------------------------------------------------------
\10\ 10 CFR 2.202(a).
\11\ 42 U.S.C. 2201.
\12\ Section 2.3.5 of the NRC Enforcement Policy (2013) (ADAMS
Accession No. ML13228A199).
\13\ 10 CFR 2.202(b).
---------------------------------------------------------------------------
On the same day that the Commission published the 1990 proposed
Deliberate Misconduct Rule, ``Willful Misconduct by Unlicensed
Persons,'' \14\ it also published a related proposed rule, ``Revisions
to Procedures to Issue Orders,'' \15\ that would expressly allow the
Commission to issue orders to unlicensed persons. The Commission may
issue these orders ``when such persons have demonstrated that future
control over their activities subject to the NRC's jurisdiction is
deemed to be necessary or desirable to protect public health and safety
or to minimize danger to life or property or to protect the common
defense and security.'' \16\ This proposed rule concerned amendments to
10 CFR 2.202 and other 10 CFR part 2 provisions.\17\ At the time of
these proposed rules, the Commission's regulations only authorized the
issuance of an order to a licensee. Therefore, the intent of the 1990
proposed Deliberate Misconduct Rule and its companion proposed rule was
to establish a mechanism to issue ``an order . . . to an unlicensed
person who willfully causes a licensee to be in violation of Commission
requirements or whose willful misconduct undermines, or calls into
question, the adequate protection of the public health and safety in
connection with activities regulated by the NRC under the [AEA].'' \18\
These proposed changes were adopted, with some modifications, in the
1991 final Deliberate Misconduct Rule.\19\ Specifically, the 1991 final
Deliberate Misconduct Rule amended 10 CFR 2.202 and other provisions of
10 CFR part 2 (10 CFR 2.1, 2.201, 2.204, 2.700, and appendix C), to
authorize the issuance of an order to unlicensed persons otherwise
subject to the NRC's jurisdiction.
---------------------------------------------------------------------------
\14\ 55 FR 12374; April 3, 1990.
\15\ 55 FR 12370; April 3, 1990.
\16\ Id. at 12371.
\17\ Id. at 12373-74.
\18\ Id. at 12372.
\19\ 56 FR 40664; August 15, 1991.
---------------------------------------------------------------------------
On July 5, 1990, the Commission published another proposed rule
that would make additional changes to 10 CFR 2.202.\20\ These
additional changes pertained to immediately effective orders.
Primarily, the July 5, 1990, proposed rule would have required that
challenges to immediately effective orders be heard expeditiously. The
statement of considerations for the July 5, 1990, proposed rule noted
that ``the Commission believes that a proper balance between the
private and governmental interests involved is achieved by a hearing
conducted on an accelerated basis.'' \21\ The statement of
considerations also stated that a ``motion to set aside immediate
effectiveness must be based on one or both of the following grounds:
The willful misconduct charged is unfounded or the public health,
safety or interest does not require the order to be made immediately
effective.'' \22\
---------------------------------------------------------------------------
\20\ 55 FR 27645.
\21\ Id.
\22\ 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 of an immediately effective
order and of the NRC staff:
The burden of going forward on the immediate effectiveness issue
is with the party who moves to set aside the immediate effectiveness
provision. The burden of persuasion on the appropriateness of
immediate effectiveness is on the NRC staff.\23\
---------------------------------------------------------------------------
\23\ Id. at 27646.
After receiving public comments on the July 5, 1990, proposed rule, the
Commission published a final rule on May 12, 1992.\24\ The Commission
acknowledged in the May 12, 1992, final rule that ``an immediately
effective order may cause a person to suffer loss of employment while
the order is being adjudicated'' but recognized that the effects of
health and safety violations are paramount over an individual's right
of employment.\25\ Accordingly, the final rule amended 10 CFR 2.202(c)
``to allow early challenges to the immediate effectiveness aspect of
immediately effective orders.'' \26\ The final rule also provided for
an expedited hearing on both the merits of the immediately effective
order and a challenge to set aside immediate effectiveness. The
presiding officer in an immediate effectiveness challenge must dispose
of a person's motion to set aside the immediate effectiveness of the
order ``expeditiously,'' generally within 15 days.\27\ Therefore, the
Commission struck a balance between the governmental interests in
protecting public health and safety and an interest in fairness by
requiring that challenges to immediately effective orders be heard
expeditiously.
---------------------------------------------------------------------------
\24\ 57 FR 20194.
\25\ Id. at 20195.
\26\ Id. at 20194.
\27\ Id. at 20196. See also 10 CFR 2.202(c)(2)(i).
---------------------------------------------------------------------------
Burden of Going Forward and Burden of Persuasion
In opposing the immediate effectiveness aspect of an order, the
party subject to the order, or respondent, must initiate the proceeding
by filing affidavits and other evidence that state that the order and
the NRC staff's determination that it is necessary to make the order
immediately effective ``is not based on adequate evidence but on mere
suspicion, unfounded allegations, or error.'' \28\ The respondent's
obligation to challenge the order is known as the ``burden of going
forward.'' \29\ Section 2.202, however, has been interpreted to mean
that the NRC staff bears the ``burden of persuasion'' to demonstrate
that the order itself, and the immediate effectiveness determination,
are supported by ``adequate evidence.'' \30\ In a 2005 proceeding, the
Board described what the NRC staff must prove, stating,
---------------------------------------------------------------------------
\28\ 10 CFR 2.202(c)(2)(i).
\29\ United Evaluation Servs, Inc., LBP-02-13, 55 NRC 351, 354
(2002).
\30\ Id.
[T]he staff must satisfy a two-part test: It must demonstrate
that adequate evidence--i.e., reliable, probative, and substantial
(but not preponderant) evidence--supports a conclusion that (1) the
licensee violated a Commission requirement (10 CFR 2.202(a)(1)), and
(2) the violation was `willful,' or the violation poses a risk to
`the public health, safety, or interest' that requires immediate
action (id. Sec. 2.202(a)(5)).\31\
---------------------------------------------------------------------------
\31\ Safety Light Corp. (Bloomsburg, Pennsylvania Site), LBP-05-
02, 61 NRC 53, 61 (2005) (emphasis in original).
Although Mr. Geisen never challenged the immediate effectiveness of the
Commission's order, one of the Board's judges raised the concern that
10 CFR 2.202(c)(2)(i) could be interpreted to place the burden of
persuasion on the
[[Page 63412]]
party subject to the order to show that the order is based on mere
suspicion, unfounded allegations, or error.\32\ This final rule
clarifies that the burden of persuasion is the obligation of the NRC
staff, not the party subject to the order.
---------------------------------------------------------------------------
\32\ Geisen, ``Additional Views of Judge Farrar,'' LBP-09-24, 70
NRC at 801 n.12 (``To succeed under the terms of [10 CFR
2.202(c)(2)(i)], the challenge brought by the Order's target must
show that `the order, including the need for immediate
effectiveness, is not based on adequate evidence but on mere
suspicion, unfounded allegations, or error.' In addition to having
the burden on immediate effectiveness, the target is apparently
expected to address the merits at that point as well, as is
indicated by the next sentence, which requires the challenge to
`state with particularity the reasons why the order is not based on
adequate evidence' and to `be accompanied by affidavits or other
evidence relied on.' 10 CFR 2.202(c)(2)(i). All in 20 days, unless
extended. Id. Sec. 2.202(a)(2).'') (emphasis in the original).
---------------------------------------------------------------------------
Authority of the Presiding Officer to Order Live Testimony
The July 5, 1990, proposed rule's statement of considerations
contemplated the possibility of an evidentiary hearing as part of a
challenge to immediate effectiveness:
It is expected that the presiding officer normally will decide
the question of immediate effectiveness solely on the basis of the
order and other filings on the record. The presiding officer may
call for oral argument. However, an evidentiary hearing is to be
held only if the presiding officer finds the record is inadequate to
reach a proper decision on immediate effectiveness. Such a situation
is expected to occur only rarely.\33\
---------------------------------------------------------------------------
\33\ 55 FR 27645-46.
The May 12, 1992, final rule, however, simply stated that ``[t]he
presiding officer may call for oral argument but is not required to do
so.'' \34\ Section 2.319 outlines the presiding officer's authority to
``conduct a fair and impartial hearing according to law, and to take
appropriate action to control the prehearing and hearing process, to
avoid delay and maintain order,'' including the power to examine
witnesses, but this power is not specified in 10 CFR 2.202. This final
rule clarifies the presiding officer's authority to order live
testimony on challenges to the immediate effectiveness of orders.
---------------------------------------------------------------------------
\34\ 57 FR at 20196.
---------------------------------------------------------------------------
II. Discussion
Immediately Effective Orders
This rule amends 10 CFR 2.202(c)(2) to clarify that in any
challenge to the immediate effectiveness of an order, the NRC staff
bears the burden of persuasion and the party challenging the order
bears the burden of going forward.\35\ Specifically, the rule states
that the NRC staff must show that (1) adequate evidence supports the
grounds for the order and (2) immediate effectiveness is warranted.\36\
---------------------------------------------------------------------------
\35\ The party challenging the order has the obligation to
initiate the proceeding, namely, by filing the appropriate motion
under 10 CFR 2.202(c)(2)(i). This motion ``must state with
particularity the reasons why the order is not based on adequate
evidence and must be accompanied by affidavits or other evidence
relied on.'' 10 CFR 2.202(c)(2)(i).
\36\ The Administrative Procedure Act provides ``[e]xcept as
otherwise provided by statute, the proponent of a rule or order has
the burden of proof.'' 5 U.S.C. 556(d).
---------------------------------------------------------------------------
This rule further amends 10 CFR 2.202(c)(2) to confirm the
presiding officer's authority to order live testimony, including cross
examination of witnesses, in hearings on challenges to the immediate
effectiveness of orders if the presiding officer concludes that taking
live testimony would assist in its decision on the motion. Similarly,
the rule allows any party to the proceeding to file a motion requesting
the presiding officer to order live testimony. The amendments allow the
NRC staff, in cases where the presiding officer orders live testimony,
the option of presenting its response through live testimony rather
than a written response made within 5 days of its receipt of the
motion. The NRC does not anticipate that permitting the presiding
officer to allow live testimony would cause delay, and even if it were
to cause delay, public health and safety would not be affected because
the immediately effective order would remain in effect throughout the
hearing on immediate effectiveness.
The rule also amends 10 CFR 2.202(c)(2) to clarify that the
presiding officer shall conduct any live testimony pursuant to its
powers in 10 CFR 2.319, except that no subpoenas, discovery, or
referred rulings or certified questions to the Commission shall be
permitted for this purpose. Finally, the rule amends 10 CFR 2.202(c)(2)
by dividing the paragraph into smaller paragraphs, adding a cross
reference to 10 CFR 2.202(a)(5) (the regulation that authorizes the
Commission to make an order immediately effective), and making other
minor edits to improve clarity and readability.
Conforming Amendments
Section 150.2, ``Scope,'' provides notice to Agreement State
licensees conducting activities under reciprocity in areas of NRC
jurisdiction that they are subject to the applicable NRC Deliberate
Misconduct Rule provisions. When the NRC first promulgated the
Deliberate Misconduct Rule in 1991, it failed to list 10 CFR 61.9b as a
cross reference in 10 CFR 150.2. At the time, 10 CFR 150.2 listed 10
CFR 30.10, 40.10, and 70.10 as the Deliberate Misconduct Rule
provisions applicable to Agreement State licensees conducting
activities under reciprocity in areas of NRC jurisdiction.
On January 13, 1998, the NRC revised its regulations to extend the
Deliberate Misconduct Rule to include applicants for or holders of
certificates of compliance issued under 10 CFR part 71, ``Packaging and
Transportation of Radioactive Material.'' \37\ This rule designated the
10 CFR part 71 Deliberate Misconduct Rule provision as 10 CFR
71.11.\38\ The NRC made a conforming amendment to 10 CFR 150.2 by
listing 10 CFR 71.11 as a cross reference.\39\ The NRC later
redesignated the provision as 10 CFR 71.8 \40\ but did not make a
conforming amendment to update the cross reference in 10 CFR 150.2. The
current 10 CFR 150.2 rule text still lists the 10 CFR part 71
Deliberate Misconduct Rule provision as 10 CFR 71.11.
---------------------------------------------------------------------------
\37\ 63 FR 1890.
\38\ Id. at 1899.
\39\ Id. at 1901.
\40\ In a 2004 rulemaking amending its regulations concerning
the packaging and transport of radioactive materials, the NRC
renumbered 10 CFR 71.11 to 10 CFR 71.8 (69 FR 3698, 3764, 3790;
January 26, 2004).
---------------------------------------------------------------------------
This rule makes conforming amendments to 10 CFR 150.2 by adding a
cross reference to 10 CFR 61.9b and deleting the cross reference to 10
CFR 71.11 and replacing it with a cross reference to 10 CFR 71.8.
III. Opportunities for Public Participation
The proposed rule was published on February 11, 2014, for a 90-day
public comment period that ended on May 12, 2014.\41\
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\41\ 79 FR 8097.
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IV. Public Comment Analysis
The NRC received comments from six commenters: The Nuclear Energy
Institute, Inc. (NEI), the National Association of Criminal Defense
Lawyers (NACDL), STARS Alliance LLC (STARS), Hogan Lovells LLP (Hogan
Lovells), Troutman Sanders LLP (Troutman Sanders), and an individual,
Mr. James Lieberman. All six provided comments on the proposed
amendment to the Deliberate Misconduct Rule incorporating the concept
of deliberate ignorance. One commenter, Mr. Lieberman, supported the
amendment. The other five commenters opposed the amendment. All
comments are summarized in this section, by topic. Additionally, two
commenters (NEI and STARS) provided comments on the proposed amendments
to 10 CFR
[[Page 63413]]
2.202(c) concerning the immediate effectiveness of orders. The NRC
received no comments on the proposed amendments to 10 CFR 150.2.
Comments Concerning Deliberate Ignorance
Comment 1: Confusion and Practical Difficulties Associated With
Distinguishing Between Deliberate Ignorance and Carelessness,
Recklessness, or Negligence
The NEI, NACDL, STARS, Hogan Lovells, and Troutman Sanders
commented that deliberate ignorance is an inherently vague and highly
subjective criminal knowledge standard and that distinguishing
deliberate ignorance from other, non-deliberate states of mind, such as
carelessness, recklessness, or negligence, would be difficult in
practice. These commenters expressed concern that adoption of the
deliberate ignorance standard into the NRC's regulations may confuse
NRC staff and could possibly result in enforcement action against
individuals who do not commit deliberate violations.
Specifically, Hogan Lovells expressed concern that NRC staff would
have difficulty assessing what an individual ``subjectively believed''
and whether the individual deliberately took action to ``avoid
learning'' a material fact. The NEI commented that the ``complex,
legalistic deliberate ignorance standard would be difficult to apply
and would promote unnecessary and wasteful litigation without a
counterbalancing benefit to the public.'' The NACDL expressed concern
that the ``theoretical distinction between a person who is deliberately
ignorant and one who is reckless or negligent'' would be ``almost
impossible to maintain'' in the NRC enforcement setting. As additional
support for these concerns, NEI, STARS, and Hogan Lovells stated that
legal scholars and courts, including the U.S. Court of Appeals for the
District of Columbia Circuit (D.C. Circuit), have cautioned that a
``deliberate ignorance'' jury instruction in Federal criminal trials
should only be used sparingly because of the heightened risk that
defendants may be inadvertently or impermissibly convicted on a lesser
basis than deliberate ignorance, such as recklessness or negligence.
The NACDL, NEI, and Troutman Sanders also argued that in the majority
of cases evidence used to support a finding of deliberate ignorance
would also serve as circumstantial evidence of actual knowledge,
thereby further diminishing the utility of the proposed rule.
One commenter, Mr. Lieberman, expressed support for the
incorporation of the deliberate ignorance standard because the text of
the rule ``clearly'' distinguished deliberate ignorance from persons
who act with recklessness or careless indifference. Mr. Lieberman
recommended that the Commission provide several hypothetical examples
of how and under what circumstances the deliberate ignorance standard
might be applied in the future to more clearly explain how the NRC
staff would differentiate between deliberate ignorance and careless
disregard in practice.
NRC Response: The Commission agrees with the comments expressing
concern that the difficulties in implementing the deliberate ignorance
standard would likely outweigh its corresponding benefits. The text of
the proposed rule contains multiple subjective elements that would
require NRC staff to assess and demonstrate the subjective belief for
an individual's actions or inactions. The Commission believes the text
of the proposed rule correctly defines ``deliberate ignorance'' in such
a way as to distinguish it from careless disregard or other, non-
deliberate standards.\42\ However, after further consideration of the
difficulties in assessing the facts of a case against this separate
intent standard, the Commission has decided not to adopt its proposed
amendment to incorporate a deliberate ignorance standard into the
Deliberate Misconduct Rule. In this regard, the NRC staff already
assesses cases against two intent standards cognizable in our
enforcement process--deliberateness involving actual knowledge, and all
other forms of willfulness, including careless disregard. Careless
disregard is different only in degree from the new standard of
deliberate ignorance and could frustrate the efficiency of the
enforcement process, at least initially, until guidance were issued and
enforcement experience established. The Commission also anticipates
that, in most NRC enforcement cases, evidence supporting deliberate
ignorance would also serve as circumstantial evidence supporting actual
knowledge, further diminishing the utility of the proposed rule at this
time.\43\ Multiple Federal circuits have characterized deliberate
ignorance jury instructions as means to properly inform juries that a
``charade of ignorance'' can serve as circumstantial proof of guilty
knowledge.\44\ Therefore, the benefits associated with the deliberate
ignorance standard would likely not outweigh the practical difficulties
of its implementation, particularly given that the Commission expects
that cases where evidence supports a deliberate ignorance finding but
not actual knowledge will be rare.
---------------------------------------------------------------------------
\42\ The proposed rule text mirrored the definition provided by
the United States Supreme Court in Global-Tech Appliances, Inc. v.
SEB S.A., 131 S. Ct. 2060 (2011).
\43\ See, e.g., United States v. Arbizo, 833 F.2d 244, 247, 248-
49 (10th Cir. 1987) (``One can in fact not know many detailed facts
but still have enough knowledge to demonstrate consciousness of
guilty conduct sufficient to satisfy the `knowing' element of the
crime . . . Arbizo's case presents evidence supporting both actual
knowledge and deliberate avoidance of knowledge of some details of
the transaction, either of which justify the [guilty] verdict . . .
.'').
\44\ See, e.g., U.S. v. Conner, 537 F.3d 480, 486 (5th Cir.
2008); U.S. v. Delreal-Ordones, 213 F.3d 1263, 1269 (10th Cir.
2000).
---------------------------------------------------------------------------
The Commission acknowledges Mr. Lieberman's support for the rule
and, as previously stated, agrees that the text of the proposed rule
accurately distinguishes deliberate ignorance from non-deliberate
standards, including recklessness, negligence, and carelessness.
However, for the reasons previously stated, the Commission is not
adopting in this final rule the proposed amendment to the Deliberate
Misconduct Rule.
Comment 2: Lack of a Compelling Justification
The NEI, NACDL, STARS, Hogan Lovells, and Troutman Sanders all
commented that the proposed rule failed to provide a compelling
justification for incorporating the deliberate ignorance standard into
the Deliberate Misconduct Rule. Several of these commenters stated that
the only justification that the NRC provided for expanding the scope of
the rule was the NRC staff's inability to invoke collateral estoppel in
the Geisen case. These commenters stated that expanding the Deliberate
Misconduct Rule cannot be justified by a single case in the Deliberate
Misconduct Rule's 25-year history and that to fashion a rule to fit a
single case is both unnecessary and bad policy. The NEI commented that
the Commission should not view the Geisen proceedings as illustrative
of an additional or unfair ``burden'' that the NRC staff must overcome
in deliberate misconduct enforcement cases. Instead, the case simply
illustrated the NRC staff's responsibility in carrying its burden when
issuing an enforcement order and that the NRC should not be able to
dispense with this responsibility by amending the Deliberate Misconduct
Rule.
The NEI and Hogan Lovells also argued that the statement in the
proposed rule that ``deficiencies in the
[[Page 63414]]
Deliberate Misconduct Rule became apparent'' in the Geisen case was
incorrect because the Geisen case was not a deliberate ignorance case.
Rather, the NRC's order only alleged that Mr. Geisen had actual
knowledge of the falsity of the statements that he submitted to the
NRC, and that the Atomic Safety and Licensing Board agreed that the
case was only an actual knowledge case. Therefore, according to the
commenters, the NRC should not use the Geisen case as a basis for the
rule. The commenters noted that, when promulgating the original
Deliberate Misconduct Rule in 1991, the Commission stated that the
range of actions subject to the rule was not expected to ``differ
significantly'' from those that might subject an individual to criminal
prosecution, and the commenters noted that one case in nearly 25 years
does not rise to the level of a ``significant'' difference.
NRC Response: The Commission disagrees with this comment. Although
the Commission recognizes that the benefits of the rule would be
limited because it will likely prove decisive in few cases, the
Commission disagrees with the comment that the agency lacked adequate
justification to consider modification of the regulations to address
deliberate ignorance. When promulgating the Deliberate Misconduct Rule
in 1991, the Commission stated that deliberate misconduct is a
significant and serious matter that poses a distinct threat to public
health and safety.\45\ The NRC's inability to invoke collateral
estoppel in the Geisen proceeding was not the sole justification for
proposing to amend the Deliberate Misconduct Rule. Rather, the
Commission has always considered willful violations of NRC requirements
to be of particular concern because the NRC's regulatory program is
dependent on licensees and their contractors, employees, and agents to
act with integrity and communicate with candor. Therefore, the outcome
of the Geisen proceeding prompted the Commission to reevaluate the
Deliberate Misconduct Rule.
---------------------------------------------------------------------------
\45\ 56 FR 40664, 40674; August 15, 1991.
---------------------------------------------------------------------------
The Commission also disagrees with the comment that the Geisen case
was not a deliberate ignorance case. While the NRC staff did allege
only actual knowledge throughout the enforcement proceeding, the NRC
staff did not pursue a deliberate ignorance theory because it conceded
deliberate ignorance was not a basis upon which it could pursue
enforcement action under the Deliberate Misconduct Rule as currently
written.\46\ Conversely, DOJ's parallel criminal prosecution of Mr.
Geisen in Federal court was based on alternate theories of actual
knowledge or deliberate ignorance. The district court provided the
deliberate ignorance jury instruction, and Mr. Geisen was convicted on
a general verdict. On appeal to the U.S. Court of Appeals for the Sixth
Circuit (Sixth Circuit), Mr. Geisen challenged the district court's
decision to provide the deliberate ignorance jury instruction.\47\ The
Sixth Circuit reiterated that ``a deliberate ignorance instruction is
warranted to prevent a criminal defendant from escaping conviction
merely by deliberately closing his eyes to the obvious risk that he is
engaging in unlawful conduct,'' but cautioned that this instruction
should be used sparingly because of the heightened risk of conviction
based on mere negligence, carelessness, or ignorance.\48\ Under this
standard, the court found the instruction to be proper because the
district court's instruction was a correct statement of the law and
included a limiting instruction--that ``carelessness, or negligence, or
foolishness on [the defendant's] part is not the same as knowledge and
is not enough to convict'' foreclosed the possibility that the jury
could erroneously convict Geisen on the basis of negligence or
carelessness.\49\ Moreover, the court found that the evidence supported
a conviction based on either actual knowledge or deliberate
ignorance.\50\ Had the deliberate ignorance standard been incorporated
into the NRC's Deliberate Misconduct Rule, collateral estoppel would
have been available to the NRC staff in the Geisen matter.
---------------------------------------------------------------------------
\46\ See David Geisen, LBP-09-24, 70 NRC 676, 715 (2009);
Geisen, CLI-10-23, 72 NRC 210, 251 (2010).
\47\ United States v. Geisen, 612 F.3d 471, 485 (6th Cir. 2010).
\48\ Id. at 485-86 (citations and internal quotation marks
omitted).
\49\ Id.
\50\ Id. at 487.
---------------------------------------------------------------------------
As previously stated, the Commission is not adopting the proposed
amendment to the Deliberate Misconduct Rule because the practical
difficulties are expected to outweigh the potential benefits gained
from the rule.
Comment 3: Previous Rejection of the Deliberate Ignorance Standard
The NEI stated that the proposed rule would conflict with the
Commission's decision in the 1991 Deliberate Misconduct Rule to exclude
from the rule violations based on careless disregard and negligence.
Hogan Lovells stated that the Commission rejected the deliberate
ignorance standard when it promulgated the original Deliberate
Misconduct Rule.
NRC Response: The Commission disagrees with the comment. Although
the Commission is not adopting the proposed amendment to the Deliberate
Misconduct Rule due to the practical difficulties associated with
applying the deliberate ignorance standard, the Commission disagrees
with comments suggesting that the deliberate ignorance standard was
previously analyzed and explicitly rejected when the Commission
promulgated the original Deliberate Misconduct Rule in 1991. The
commenter points to a single sentence in the statement of
considerations for the proposed rule that discussed ``careless
disregard,'' which uses the phrase ``a situation in which an individual
blinds himself or herself to the realities of whether a violation has
occurred or will occur.'' \51\ The proposed rule and final rule did not
make any other reference related to willful blindness or deliberate
ignorance and did not contain detailed discussion on the standards.
---------------------------------------------------------------------------
\51\ 55 FR 12375; April 3, 1990.
---------------------------------------------------------------------------
The Commission eventually eliminated ``careless disregard'' from
the final rule in response to public comments, which Hogan Lovells
characterizes as the Commission's ``considered and intentional
decision'' to exclude deliberate ignorance from the rule. However, the
Commission disagrees that this limited discussion amounts to an express
rejection of the deliberate ignorance standard. In the 1991 final rule,
the Commission did not focus on the applicability of collateral
estoppel in a parallel criminal action, which was one of the
justifications for the proposed rule. Further, rejection of a proposal
under previous rulemaking would not prevent future Commissions from
reconsidering the matter and reaching a different conclusion. As
previously stated, the NRC is not adopting the proposed amendment to
the Deliberate Misconduct Rule over concerns that practical
difficulties with its implementation are expected to outweigh the
potential benefits.
Comment 4: Unsettled Judicial Precedent
The NEI, Hogan Lovells, and STARS stated that the proposed rule is
premature because of unsettled judicial precedent. The NEI and Hogan
Lovells cited as support the D.C. Circuit's statements in United States
v. Alston-Graves about the use of the deliberate ignorance
standard.\52\ The NEI also stated that the DC Circuit's opinion
[[Page 63415]]
should carry substantial weight in deciding whether to adopt the
deliberate ignorance standard because the DC Circuit is the only
Federal circuit court that always has jurisdiction and venue to
consider challenges to NRC enforcement orders.
---------------------------------------------------------------------------
\52\ 435 F.3d 331 (D.C. Cir. 2006).
---------------------------------------------------------------------------
Additionally, NEI and Hogan Lovells stated that the Supreme Court
case Global-Tech Appliances, Inc. v. SEB, S.A., is not directly
applicable because it was a patent case, not a criminal case.
Therefore, as Justice Kennedy noted in his dissent in the case, the
Court was not briefed on whether to endorse the deliberate ignorance
standard for all criminal cases requiring the government to prove
knowledge.\53\ The NEI and Hogan Lovells also noted that Federal courts
most commonly apply the deliberate ignorance standard in drug cases.
---------------------------------------------------------------------------
\53\ Global-Tech Appliances, Inc. v. SEB, S.A., 131 S. Ct. 2060,
2073 (2011) (Kennedy, J., dissenting).
---------------------------------------------------------------------------
NRC Response: The Commission disagrees with the comment. Although
the Commission is not adopting the proposed amendment to the Deliberate
Misconduct Rule due to the practical difficulties associated with
applying the deliberate ignorance standard, the Commission disagrees
that judicial precedent in this area is unsettled such that the
Commission's proposal to adopt the deliberate ignorance standard is
premature. In the words of the Supreme Court, the doctrine of willful
blindness is ``well established'' in the Federal courts.\54\ The
history of the deliberate ignorance standard is quite long--the concept
has been endorsed and applied in criminal cases for more than 100
years. The Supreme Court endorsed a similar concept in 1899 in Spurr v.
United States.\55\ In 1976, the Ninth Circuit in United States v.
Jewell crafted the modern formulation of the deliberate ignorance
standard that Federal courts have since adopted and applied.\56\ The
concept of deliberate ignorance is now widely accepted in the Federal
courts, which commonly give and uphold deliberate ignorance jury
instructions.\57\
---------------------------------------------------------------------------
\54\ Id. at 2068-69 (majority opinion).
\55\ See id. at 2069.
\56\ 532 F.2d 697 (9th Cir. 1976). See also, e.g., United States
v. Caminos, 770 F.2d 361, 365 (3d Cir. 1985) (``The charge, known as
a `deliberate ignorance' charge, originated in United States v.
Jewell.'').
\57\ Global-Tech, 131 S. Ct. at 2069; Alston-Graves, 435 F.3d at
338.
---------------------------------------------------------------------------
In Alston-Graves, the D.C. Circuit ruled on the appropriateness of
a deliberate ignorance instruction and found that the lower court
committed harmless error giving the instruction--not because the
instruction itself is improper but because in this particular case the
prosecution failed to present sufficient evidence to support it.\58\ At
no point in Alston-Graves did the D.C. Circuit reject the deliberate
ignorance standard. Indeed, the court acknowledged that it had
previously supported the concept of deliberate ignorance in dicta in a
prior case.\59\
---------------------------------------------------------------------------
\58\ Alston-Graves, 435 F.3d at 341-42.
\59\ Id. at 340 (citing United States v. Mellen, 393 F.3d 175,
181 (D.C. Cir. 2004)).
---------------------------------------------------------------------------
The Commission disagrees with the comment that it should give the
D.C. Circuit's opinion in Alston-Graves more weight relative to other
Federal circuits. The Hobbs Act, which NEI cited as providing the D.C.
Circuit with jurisdiction and venue over all challenges to NRC
enforcement orders, also states that jurisdiction and venue is proper
in any court of appeals in which the petitioner resides or has its
principal office.\60\ Non-licensed individuals challenging enforcement
actions could file such challenges where they reside. Therefore, the
Commission believes that it would be unwise to give additional weight
to the D.C. Circuit's decision not to fully embrace the deliberate
ignorance standard and relatively less weight to every other Federal
circuit, which have each more fully embraced the deliberate ignorance
standard.\61\
---------------------------------------------------------------------------
\60\ 28 U.S.C. 2342(4), 2343.
\61\ The First, Third, Fifth, Sixth, Seventh, Eighth, Ninth,
Tenth, and Eleventh Circuit Courts of Appeals have incorporated
willful blindness or deliberate ignorance into their pattern or
model jury instructions. Pattern or model jury instructions are
plain language formulations of case law that judges may provide to
juries as legal explanations. These jury instructions are given
legal weight through their use in trials and subsequent approval of
that use on appeal. The Second Circuit, see, e.g., United States v.
Coplan, 703 F.3d 46 (2d Cir. 2012), and Fourth Circuit, see, e.g.,
United States v. Poole, 640 F.3d 114 (4th Cir. 2011), have applied
deliberate ignorance or willful blindness in case law.
---------------------------------------------------------------------------
Additionally, the Commission disagrees with the comment that the
Supreme Court's Global-Tech decision is inapplicable. The Court
acknowledged that it was not briefed on the question of whether to
endorse the deliberate ignorance standard for all criminal cases
requiring the government to prove knowledge. In rebutting Justice
Kennedy's dissent, the Court stated that it could think of no reason to
``protect . . . parties who actively encourage others to violate patent
rights and who take deliberate steps to remain ignorant of those rights
despite a high probability that the rights exist and are being
infringed.'' \62\ The majority's rationale applies with equal force to
nuclear regulation. Moreover, although Global-Tech is a civil case, it
relied on criminal cases to distill a definition of deliberate
ignorance and several courts of appeals have referenced or applied
Global-Tech in criminal jury instructions and criminal sentencing.\63\
Additionally, Federal circuits have approved application of the
deliberate ignorance standard in a variety of criminal and civil
cases.\64\
---------------------------------------------------------------------------
\62\ Global-Tech Appliances, Inc. v. SEB, S.A., 131 S. Ct. 2060,
2069 n.8 (2011).
\63\ See, e.g., United States v. Goffer, 721 F.3d 113, 127-28
(2d Cir. 2013); United States v. Brooks, 681 F.3d 678, 702 n.19 (5th
Cir. 2012); United States v. Butler, 646 F.3d 1038, 1041 (8th Cir.
2011).
\64\ See, e.g., United States v. Goffer, 721 F.3d 113, (2d Cir.
2013) (upholding a deliberate ignorance jury instruction in a case
involving charges of conspiracy to commit securities fraud and
securities fraud); United States v. Yi, 704 F.3d 800 (9th Cir. 2013)
(upholding a deliberate ignorance jury instruction in a case
involving a charge of conspiracy to violate the Clean Air Act);
United States v. Brooks, 681 F.3d 678 (5th Cir. 2012) (affirming
provision of the deliberate ignorance jury instruction in a case
involving charges of false reporting of natural gas trades in
violation of the Commodity Exchange Act and the federal wire fraud
statute); United States v. Jinwright, 683 F.3d 471 (4th Cir. 2012)
(finding the provision of the deliberate ignorance instruction was
not an abuse of discretion in a case involving charges of a
conspiracy to defraud and tax evasion); Tommy Hilfiger Licensing,
Inc. v. Goody's Family Clothing, Inc., 2003 WL 22331254 (N.D. Ga.
2003) (applying a deliberate ignorance standard to a Section 1117
trademark infringement claim).
---------------------------------------------------------------------------
As previously stated, the NRC is not adopting the proposed
amendment to the Deliberate Misconduct Rule because the practical
difficulties with its implementation would likely outweigh the
potential benefits.
Comment 5: Lack of Guidance
The NEI and STARS stated that the NRC failed to issue draft
guidance with the proposed rule and should not make the final rule
effective until after the NRC publishes draft guidance for public
comment and then finalizes that guidance. The NEI stated that NRC
policy requires that the agency issue draft guidance in parallel with
proposed rules, citing the SRM to SECY-11-0032, ``Consideration of the
Cumulative Effects of Regulation in the Rulemaking Process,'' dated
October 11, 2011 (ADAMS Accession No. ML112840466). The NEI further
stated that the final rule should require the Director of the Office of
Enforcement to formally certify to the Commission that he or she has
reviewed the staff's application of deliberate ignorance before issuing
any violation relying on the standard. The NEI also suggested that the
NRC provide examples of circumstances that are categorically excluded
(i.e., safe harbors) from enforcement on the basis of deliberate
ignorance.
Mr. Lieberman expressed support for the proposed rule but also
suggested that the NRC provide hypothetical examples of conduct that
does and does
[[Page 63416]]
not satisfy the deliberate ignorance standard in the statement of
considerations for the final rule.
NRC Response: The Commission is in general agreement that, if
adopted, the rule would benefit from the development of implementing
guidance. However, as stated previously, the Commission is has decided
not to adopt the proposed amendments to the Deliberate Misconduct Rule.
Therefore, there is no need for draft guidance as requested by the
commenters.
Comment 6: Proposed Rule Would Discourage Participation in Licensed
Activities and Is Not Necessary To Deter Deliberate Misconduct
The NEI commented that the proposed rule would discourage
participation in licensed activities and nuclear employment and noted
that the Commission acknowledged this concern in the 1991 Deliberate
Misconduct Rule.
The NEI commented that the proposed rule is not necessary for
deterrent effect because the risk of criminal prosecution is a
sufficient deterrent. The commenter also stated that, rather than
expanding the Deliberate Misconduct Rule to encompass more individual
behavior, the NRC still has the option in situations where an
individual engages in improper conduct beyond the reach of the current
Deliberate Misconduct Rule to issue sanctions to the company to address
the NRC's concerns.
NRC Response: The Commission acknowledges the commenter's concern
with respect to participation and employment in the nuclear field and
notes that commenters raised and the Commission responded to a similar
concern with respect to the 1991 Deliberate Misconduct Rule.\65\ The
Commission also acknowledges that the agency continues to have the
ability to take enforcement action against a licensee for an
individual's conduct that results in a violation of NRC requirements
but does not amount to deliberate misconduct. However, as stated
previously, the Commission has decided not to adopt the proposed
changes to the Deliberate Misconduct Rule because practical
difficulties outweigh the potential benefits. Therefore the Commission
did not reach this issue.
---------------------------------------------------------------------------
\65\ 56 FR 40675; August 15, 1991.
---------------------------------------------------------------------------
Comments Concerning Immediately Effective Orders
Citing statements from the Geisen Board majority and the additional
statement from Judge Farrar, NEI and STARS stated that immediately
effective orders should be issued less frequently and be required to
contain greater detail. These commenters also stated that the NRC staff
should be required to release the Office of Investigations report and
all evidence to the individual challenging the order in such a
proceeding. The commenters also stated that the Commission should
further define what constitutes ``adequate evidence'' for immediate
effectiveness challenge purposes. The commenters suggested revising 10
CFR 2.202(a)(5) to remove the reference to ``willful'' violations
because the NRC need not make an order immediately effective solely
based on the violation's willfulness.
The NEI and STARS proposed further changes to 10 CFR
2.202(c)(2)(ii) to clarify that the person challenging an immediately
effective enforcement order need not testify in such a hearing because
doing so may compromise his or her Fifth Amendment right against self-
incrimination. The commenters also advocated including a requirement
imposing more stringent requirements and qualifications for persons
testifying on behalf of the NRC staff in challenges to immediately
effective orders. Additionally, the commenters stated that the final
rule should include an additional sentence stating that if the
presiding officer orders live testimony, the parties may cross examine
witnesses when it would assist the presiding officer's decision on the
motion to set aside the immediate effectiveness of the order.
The NEI and STARS commented that the revision to 10 CFR
2.202(c)(2)(iii) should also require that the NRC staff reply to a
motion in writing, rather than providing the option to respond orally,
in order to prevent the staff's ability to ``ambush'' or ``sandbag''
the individual challenging the order. These commenters also stated that
the final rule should make clear that NRC staff cannot use this
opportunity to expand the scope of arguments set forth in the original
immediately effective order.
The NEI and STARS commented that the final rule should revise 10
CFR 2.202(c)(2)(viii) to require that if the presiding officer sets
aside an immediately effective order, the order setting aside immediate
effectiveness will not be stayed automatically and will only be stayed
if the NRC staff files and the Commission grants a motion for a stay
under 10 CFR 2.342.
NRC Response: The Commission disagrees with these comments and
declines to adopt these changes to the NRC's process for issuing and
adjudicating immediately effective orders. The proposed rule sought
comments on the changes to 10 CFR 2.202(c); however, as stated in the
proposed rule, these changes were intended to clarify evidentiary
burdens and the authority of the presiding officer. The final rule
clarifies that the NRC staff bears the burden of persuasion in hearings
challenging the immediate effectiveness of orders and clarifies that
the presiding officer has authority pursuant to 10 CFR 2.319 to order
live testimony. The final rule also clarifies how live testimony can be
requested and in what manner it may take form. The final rule also
contains non-substantive changes intended to improve the clarity and
readability of 10 CFR 2.202 by dividing the lengthy paragraph (c) into
shorter paragraphs.
Several of the commenters' proposed changes are either already
addressed in this final rulemaking, or the current rules are adequately
flexible to address their concerns without adopting their proposed
changes. For example, with respect to the comment recommending that if
the presiding officer orders live testimony, then the parties may cross
examine witnesses when it would assist the presiding officer's decision
on the motion to set aside the immediate effectiveness of the order,
the presiding officer already has the power to order cross examination
pursuant to 10 CFR 2.319. Additionally, 10 CFR 2.319 currently
describes the duty of the presiding officer in an NRC adjudication to
conduct a fair and impartial hearing and to take the necessary action
to regulate the course of the hearing and the conduct of its
participants. Parties can direct concerns that the NRC staff is
inappropriately expanding the scope of argument to the presiding
officer for resolution pursuant to this authority. The Commission does
not agree with concerns that the NRC staff should reply in writing in
advance of live testimony to prevent it from ``ambushing'' the
individual challenging the order. If testimony of individuals is
truthful and complete, knowing the staff's response in advance of
testifying should have little bearing on its substance. Further, with
respect to the commenters' constitutional concerns, it is well
established that the Fifth Amendment privilege against self-
incrimination can be asserted in administrative proceedings.\66\
Parties have invoked the privilege in NRC enforcement proceedings,
including the Geisen proceeding.\67\ Given the availability of
[[Page 63417]]
the privilege in NRC enforcement proceedings, the Commission declines
to adopt the proposed change.
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\66\ See Chavez v. Martinez, 538 U.S. 760, 770 (2003) (citing
Kastigar v. United States, 406 U.S. 441, 453 (1972)).
\67\ See David Geisen, LBP-06-25, 64 NRC 367, 397 n.131 (2006).
See also, e.g., Steven P. Moffitt, LBP-06-05, 64 NRC 431, 433 n.2
(2006).
---------------------------------------------------------------------------
As for the remaining comments, the Commission appreciates the
commenters' input on its process for issuing and adjudicating
immediately effective orders, but additional substantive changes to 10
CFR 2.202(c)(2) or proposals to significantly overhaul its procedures
for challenging immediately effective orders are beyond the scope of
this rulemaking. The Commission notes that the commenters are able to
submit these recommendations as a petition for rulemaking via the 10
CFR 2.802 petition for rulemaking process. The Commission takes the
commenters' concerns with fairness in its adjudicatory procedures
seriously; however, the proposed changes to 10 CFR 2.202 were limited
to clarifying changes to address specific concerns regarding the
application of 10 CFR 2.202(c) in certain circumstances. The multiple
additional procedural changes that the commenters recommend would be
more appropriately addressed in the context of a comprehensive
assessment of the NRC's rules of practice and procedure in 10 CFR part
2, which would ensure compliance with the NRC's obligations under the
Administrative Procedure Act to allow for notice and comment on
proposed rules before they are adopted. Adopting the commenters'
proposed changes in this rulemaking would not allow for sufficient
notice-and-comment opportunities for other interested parties, and the
NRC therefore declines to do so.
V. Section-by-Section Analysis
Immediate Effectiveness of Orders Rule Changes
Section 2.202
The rule makes several changes to 10 CFR 2.202(c)(2)(i). The rule
revises 10 CFR 2.202(c)(2)(i) by dividing it into several smaller
paragraphs. The rule revises paragraph 10 CFR 2.202(c)(2)(i) to include
only the first two sentences of the current 10 CFR 2.202(c)(2)(i),
which concern the right of the party subject to an immediately
effective order to challenge the immediate effectiveness of that order.
The rule further revises the first sentence to add a cross reference to
10 CFR 2.202(a)(5) and make other minor, clarifying editorial changes
to that sentence.
The rule adds a new paragraph 10 CFR 2.202(c)(2)(ii), which allows
any party to file a motion with the presiding officer requesting that
the presiding officer order live testimony. Paragraph 10 CFR
2.202(c)(2)(ii) also authorizes the presiding officer, on its own
motion, to order live testimony.
The rule redesignates the third sentence of the current 10 CFR
2.202(c)(2)(i) as a new paragraph 10 CFR 2.202(c)(2)(iii), which
authorizes the NRC staff to present its response through live testimony
rather than a written response in those cases where the presiding
officer orders live testimony.
The rule adds a new paragraph 10 CFR 2.202(c)(2)(iv), which
provides that the presiding officer shall conduct any live testimony
pursuant to 10 CFR 2.319.
The rule makes a minor clarifying change to 10 CFR 2.202(c)(2)(ii)
and redesignates that paragraph as 10 CFR 2.202(c)(2)(v).
The rule adds a new paragraph 10 CFR 2.202(c)(2)(vi), which
clarifies that the licensee or other person challenging the immediate
effectiveness of an order bears the burden of going forward, whereas
the NRC staff bears the burden of persuasion that adequate evidence
supports the grounds for the immediately effective order and that
immediate effectiveness is warranted.
The rule makes minor clarifying changes to the fourth and fifth
sentences of 10 CFR 2.202(c)(2)(i), which direct the presiding
officer's expeditious disposition of the motion to set aside immediate
effectiveness and prohibit the presiding officer from staying the
immediate effectiveness of the order, respectively, and redesignates
those sentences as a new paragraph 10 CFR 2.202(c)(2)(vii).
The rule makes minor clarifying changes to the eighth sentence of
10 CFR 2.202(c)(2)(i), and redesignates the sixth, seventh, and eighth
sentences of 10 CFR 2.202(c)(2)(i) as new paragraph 10 CFR
2.202(c)(2)(viii). These sentences (1) direct the presiding officer to
uphold the immediate effectiveness of the order if it finds that there
is adequate evidence to support immediate effectiveness, (2) address
the final agency action status of an order upholding immediate
effectiveness, (3) address the presiding officer's prompt referral of
an order setting aside immediate effectiveness to the Commission, and
(4) states that the order setting aside immediate effectiveness will
not be effective pending further order of the Commission.
Conforming Amendments to 10 CFR 150.2
This rule revises the last sentence of 10 CFR 150.2 by adding a
cross reference to 10 CFR 61.9b and replacing the cross reference to 10
CFR 71.11 with a cross reference to 10 CFR 71.8.
VI. Regulatory Flexibility Certification
Under the Regulatory Flexibility Act, as amended (5 U.S.C. 605(b)),
the NRC certifies that this rule does not have a significant economic
impact on a substantial number of small entities. This final rule
affects a number of ``small entities'' as defined by the Regulatory
Flexibility Act or the size standards established by the NRC (10 CFR
2.810). However, as indicated in Section VII, ``Regulatory Analysis,''
these amendments do not have a significant economic impact on the
affected small entities. The NRC received no comment submissions from
an identified small entity regarding the impact of the proposed rule on
small entities.
VII. Regulatory Analysis
The amendments to the rule governing hearings on challenges to
immediate effectiveness of orders do not change the existing processes
but merely clarify the rule. The final rule makes minor, conforming
amendments to 10 CFR 150.2. These amendments do not result in a cost to
the NRC or to respondents in hearings on challenges to immediate
effectiveness of orders, but a benefit accrues to the extent that
potential confusion over the meaning of the NRC's regulations is
removed. The NRC believes that this final rule improves the efficiency
of NRC enforcement proceedings without imposing costs on either the NRC
or on participants in these proceedings.
VIII. Backfitting and Issue Finality
The final rule revises the immediate effectiveness provisions at 10
CFR 2.202 to state that the respondent bears the burden of going
forward with evidence to challenge immediate effectiveness and the NRC
staff bears the burden of persuasion on whether adequate evidence
supports immediate effectiveness. The final rule also revises 10 CFR
2.202 to clarify that the presiding officer is permitted to order live
testimony, either by its own motion, or upon the motion of any party to
the proceeding.
The revisions to 10 CFR 2.202 clarify the agency's adjudicatory
procedures with respect to challenges to immediate effectiveness of
orders. These revisions do not change, modify, or affect the design,
procedures, or regulatory approvals protected under the various NRC
backfitting and issue finality provisions. Accordingly, the revisions
to the adjudicatory procedures do not represent backfitting imposed on
any
[[Page 63418]]
entity protected by backfitting provisions in 10 CFR parts 50, 70, 72,
or 76, nor are they inconsistent with any issue finality provision in
10 CFR part 52.
IX. Cumulative Effects of Regulation
Cumulative Effects of Regulation do not apply to this final rule
because it is an administrative rule. The final rule only (1) makes
amendments to the NRC's regulations regarding challenges to the
immediate effectiveness of NRC enforcement orders to clarify the burden
of proof and to clarify the authority of the presiding officer to order
live testimony in resolving these challenges and (2) makes conforming
amendments to 10 CFR 150.2.
X. Plain Writing
The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal
agencies to write documents in a clear, concise, and well-organized
manner. The NRC has written this document to be consistent with the
Plain Writing Act as well as the Presidential Memorandum, ``Plain
Language in Government Writing,'' published June 10, 1998 (63 FR
31883).
XI. National Environmental Policy Act
The NRC has determined that the issuance of this final rule relates
to enforcement matters and, therefore, falls within the scope of 10 CFR
51.10(d). In addition, the NRC has determined that the issuance of this
final rule is the type of action described in categorical exclusions at
10 CFR 51.22(c)(1)-(2). Therefore, neither an environmental impact
statement nor an environmental assessment has been prepared for this
rulemaking.
XII. Paperwork Reduction Act
This final rule does not contain any new or amended collections of
information subject to the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.). Existing collections of information were approved by the
Office of Management and Budget (OMB), approval number 3150-0032.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless the document requesting
or requiring the collection displays a currently valid OMB control
number.
XIII. Congressional Review Act
The portion of this action amending 10 CFR 2.202 is a rule as
defined in the Congressional Review Act (5 U.S.C. 801-808). However,
OMB has not found it to be a major rule as defined in the Congressional
Review Act.
XIV. Compatibility of Agreement State Regulations
Under the ``Policy Statement on Adequacy and Compatibility of
Agreement State Programs'' approved by the Commission on June 30, 1997,
and published in the Federal Register (62 FR 46517; September 3, 1997),
this final rule will be a matter of compatibility between the NRC and
the Agreement States, thereby providing consistency among the Agreement
States and the NRC requirements. The NRC staff analyzed the rule in
accordance with the procedure established within Part III,
``Categorization Process for NRC Program Elements,'' of Handbook 5.9 to
Management Directive 5.9, ``Adequacy and Compatibility of Agreement
State Programs'' (see 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 are those program
elements that are basic radiation protection standards and scientific
terms and definitions that are necessary to understand radiation
protection concepts. An Agreement State should adopt Category A program
elements in an essentially identical manner to provide uniformity in
the regulation of agreement material on a nationwide basis.
Compatibility Category B are those program elements that apply to
activities that have direct and significant effects in multiple
jurisdictions. An Agreement State should adopt Category B program
elements in an essentially identical manner. Compatibility Category C
are those program elements that do not meet the criteria of Category A
or B, but the essential objectives of which an Agreement State should
adopt to avoid conflict, duplication, gaps, or other conditions that
would jeopardize an orderly pattern in the regulation of agreement
material on a nationwide basis. An Agreement State should adopt the
essential objectives of the Category C program elements. Compatibility
Category D are those program elements that do not meet any of the
criteria of Category A, B, or C, and, therefore, do not need to be
adopted by Agreement States for purposes of compatibility.
Health and Safety (H&S) are program elements that are not required
for compatibility but are identified as having a particular health and
safety role (i.e., adequacy) in the regulation of agreement material
within the State. Although not required for compatibility, the State
should adopt program elements in this H&S category based on those of
the NRC that embody the essential objectives of the NRC program
elements because of particular health and safety considerations.
Compatibility Category NRC are those program elements that address
areas of regulation that cannot be relinquished to Agreement States
under the Atomic Energy Act, as amended, or provisions of 10 CFR. These
program elements are not adopted by Agreement States. The following
table lists the parts and sections that will be revised and their
corresponding categorization under the ``Policy Statement on Adequacy
and Compatibility of Agreement State Programs.'' The Agreement States
have 3 years from the final rule's effective date, as noted in the
Federal Register, to adopt compatible regulations.
Table 1--Compatibility Table for Final Rule
----------------------------------------------------------------------------------------------------------------
Compatibility
Section Change Subject ---------------------------------------
Existing New
----------------------------------------------------------------------------------------------------------------
Part 2
----------------------------------------------------------------------------------------------------------------
2.202(c)........................ Revised........... Orders............ NRC............... NRC.
----------------------------------------------------------------------------------------------------------------
Part 150
----------------------------------------------------------------------------------------------------------------
150.2........................... Revised........... Scope............. D................. D.
----------------------------------------------------------------------------------------------------------------
[[Page 63419]]
XV. Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995,
Public Law 104-113, requires that Federal agencies use technical
standards that are developed by voluntary consensus standards bodies
unless the use of such a standard is inconsistent with applicable law
or is otherwise impractical. In this rule, the NRC is clarifying two
aspects of challenges to the immediate effectiveness of NRC enforcement
orders: (1) The burden of proof and (2) the authority of the presiding
officer to order live testimony in resolving such a challenge. The NRC
is also making conforming amendments to 10 CFR 150.2. This action does
not constitute the establishment of a standard that contains generally
applicable requirements.
List of Subjects
10 CFR Part 2
Administrative practice and procedure, Antitrust, Byproduct
material, Classified information, Confidential business information;
Freedom of information, Environmental protection, Hazardous waste,
Nuclear energy, Nuclear materials, Nuclear power plants and reactors,
Penalties, Reporting and recordkeeping requirements, Sex
discrimination, Source material, Special nuclear material, Waste
treatment and disposal.
10 CFR Part 150
Criminal penalties, Hazardous materials transportation,
Intergovernmental relations, Nuclear energy, Nuclear materials,
Penalties, Reporting and recordkeeping requirements, Security measures,
Source material, Special nuclear material.
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended; the Energy Reorganization
Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting
the following amendments to 10 CFR parts 2 and 150 as follows:
PART 2--AGENCY RULES OF PRACTICE AND PROCEDURE
0
1. The authority citation for part 2 continues to read as follows:
Authority: Atomic Energy Act of 1954, secs. 29, 53, 62, 63, 81,
102, 103, 104, 105, 161, 181, 182, 183, 184, 186, 189, 191, 234 (42
U.S.C. 2039, 2073, 2092, 2093, 2111, 2132, 2133, 2134, 2135, 2201,
2231, 2232, 2233, 2234, 2236, 2239, 2241, 2282); Energy
Reorganization Act of 1974, secs. 201, 206 (42 U.S.C. 5841, 5846);
Nuclear Waste Policy Act of 1982, secs. 114(f), 134, 135, 141 (42
U.S.C. 10134(f), 10154, 10155, 10161); Administrative Procedure Act
(5 U.S.C. 552, 553, 554, 557, 558); National Environmental Policy
Act of 1969 (42 U.S.C. 4332); 44 U.S.C. 3504 note.
Section 2.205(j) also issued under Sec. 31001(s), Pub. L. 104-
134, 110 Stat. 1321-373 (28 U.S.C. 2461 note).
0
2. In Sec. 2.202, revise paragraph (c)(2) to read as follows:
Sec. 2.202 Orders.
* * * * *
(c) * * *
(2)(i) The licensee or other person to whom the Commission has
issued an immediately effective order in accordance with paragraph
(a)(5) of this section, may, in addition to demanding a hearing, at the
time the answer is filed or sooner, file a motion with the presiding
officer to set aside the immediate effectiveness of the order on the
ground that the order, including the need for immediate effectiveness,
is not based on adequate evidence but on mere suspicion, unfounded
allegations, or error. The motion must state with particularity the
reasons why the order is not based on adequate evidence and must be
accompanied by affidavits or other evidence relied on.
(ii) Any party may file a motion with the presiding officer
requesting that the presiding officer order live testimony. Any motion
for live testimony must be made in conjunction with the motion to set
aside the immediate effectiveness of the order or any party's response
thereto. The presiding officer may, on its own motion, order live
testimony. The presiding officer's basis for approving any motion for,
or ordering on its own motion, live testimony shall be that taking live
testimony would assist in its decision on the motion to set aside the
immediate effectiveness of the order.
(iii) The NRC staff shall respond in writing within 5 days of the
receipt of either a motion to set aside the immediate effectiveness of
the order or the presiding officer's order denying a motion for live
testimony. In cases in which the presiding officer orders live
testimony, the staff may present its response through live testimony
rather than a written response.
(iv) The presiding officer shall conduct any live testimony
pursuant to its powers in Sec. 2.319 of this part, except that no
subpoenas, discovery, or referred rulings or certified questions to the
Commission shall be permitted for this purpose.
(v) The presiding officer may, on motion by the staff or any other
party to the proceeding, where good cause exists, delay the hearing on
the immediately effective order at any time for such periods as are
consistent with the due process rights of the licensee or other person
and other affected parties.
(vi) The licensee or other person challenging the immediate
effectiveness of an order bears the burden of going forward with
evidence that the immediately effective order is not based on adequate
evidence, but on mere suspicion, unfounded allegations, or error. The
NRC staff bears the burden of persuading the presiding officer that
adequate evidence supports the grounds for the immediately effective
order and immediate effectiveness is warranted.
(vii) The presiding officer shall issue a decision on the motion to
set aside the immediate effectiveness of the order expeditiously.
During the pendency of the motion to set aside the immediate
effectiveness of the order or at any other time, the presiding officer
may not stay the immediate effectiveness of the order, either on its
own motion, or upon motion of the licensee or other person.
(viii) The presiding officer shall uphold the immediate
effectiveness of the order if it finds that there is adequate evidence
to support immediate effectiveness. An order upholding immediate
effectiveness will constitute the final agency action on immediate
effectiveness. The presiding officer will promptly refer an order
setting aside immediate effectiveness to the Commission and such order
setting aside immediate effectiveness will not be effective pending
further order of the Commission.
* * * * *
PART 150--EXEMPTIONS AND CONTINUED REGULATORY AUTHORITY IN
AGREEMENT STATES AND IN OFFSHORE WATERS UNDER SECTION 274
0
3. The authority citation for part 150 continues to read as follows:
Authority: Atomic Energy Act of 1954, secs. 11, 53, 81, 83, 84,
122, 161, 181, 223, 234, 274 (42 U.S.C. 2014, 2201, 2231, 2273,
2282, 2021); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C.
5841); Nuclear Waste Policy Act of 1982, secs. 135, 141 (42 U.S.C.
10155, 10161); 44 U.S.C. 3504 note.
0
4. In Sec. 150.2, revise the last sentence to read as follows:
Sec. 150.2 Scope.
* * * This part also gives notice to all persons who knowingly
provide to any licensee, applicant for a license or certificate or
quality assurance program approval, holder of a certificate or quality
assurance program approval, contractor, or subcontractor, any
components, equipment, materials, or
[[Page 63420]]
other goods or services that relate to a licensee's, certificate
holder's, quality assurance program approval holder's or applicant's
activities subject to this part, that they may be individually subject
to NRC enforcement action for violation of Sec. Sec. 30.10, 40.10,
61.9b, 70.10, and 71.8.
Dated at Rockville, Maryland, this 13th day of October, 2015.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2015-26590 Filed 10-19-15; 8:45 am]
BILLING CODE 7590-01-P