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


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Proposed Rules
                                                Federal Register
________________________________________________________________________

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

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

[[Page 8097]]



NUCLEAR REGULATORY COMMISSION

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

[NRC-2013-0132]
RIN 3150-AJ27


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

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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

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

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

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

SUPPLEMENTARY INFORMATION:

I. Accessing Information and Submitting Comments

A. Accessing Information

    Please refer to Docket ID NRC-2013-0132 when contacting the NRC 
about the availability of information for this proposed rule. You may 
access publicly available information related to this proposed rule by 
any of the following methods:
     Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2013-0132.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may access publicly available documents online in the NRC 
Library at http://www.nrc.gov/reading-rm/adams.html. To begin the 
search, select ``ADAMS Public Documents'' and then select ``Begin Web-
based ADAMS Search.'' For problems with ADAMS, please contact the NRC's 
Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-
4737, or by email to pdr.resource@nrc.gov. The ADAMS accession number 
for each document referenced in this document (if that document is 
available in ADAMS) is provided the first time that a document is 
referenced.
     NRC's Public Document Room: You may examine and purchase 
copies of public documents at the NRC's PDR, Room O1-F21, One White 
Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

B. Submitting Comments

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

II. Background

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

[[Page 8098]]

considerations \3\ for the 1991 rulemaking, the purpose of the 
Deliberate Misconduct Rule was to put both licensed and unlicensed 
persons on notice that they may be subject to enforcement action for 
deliberate misconduct that ``causes or, but for detection, would have 
caused, a [NRC] licensee to be in violation of any rule, regulation, or 
order, or any term, condition, or limitation of any license, issued by 
the Commission.'' \4\ In this regard, the Deliberate Misconduct Rule 
also included ``individual liability for deliberate submission of 
incomplete or inaccurate information to the NRC, a licensee, 
contractor, or subcontractor.'' \5\ Therefore, the Deliberate 
Misconduct Rule expressly extended the NRC's civil penalty enforcement 
authority (10 CFR Part 2, Subpart B) to those individuals who, although 
unlicensed by the NRC, are employed by an NRC licensee, or are employed 
by a contractor or subcontractor of an NRC licensee or who otherwise 
``knowingly provide goods or services that relate to a licensee's 
activities subject to NRC regulation.'' \6\
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    \1\ 56 FR 40664.
    \2\ The Deliberate Misconduct Rule appears in 10 CFR 30.10, 
40.10, 50.5, 52.4, 60.11, 61.9b, 63.11, 70.10, 71.8, 72.12, 76.10, 
and 110.7b.
    \3\ The term ``statement of considerations'' refers to the 
section of the Federal Register notice of a proposed rule or final 
rule that sets forth the NRC's rationale and justification for the 
rule.
    \4\ 56 FR 40665 (alteration added).
    \5\ Id.
    \6\ 56 FR 40679.
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    This proposed rule would amend the Deliberate Misconduct Rule to 
address an issue that arose during parallel NRC civil and U.S. 
Department of Justice (DOJ) criminal proceedings involving the same 
individual and the same set of facts. Specifically, the proposed rule 
would amend the Deliberate Misconduct Rule to incorporate the concept 
of ``deliberate ignorance'' as an additional basis on which to take 
enforcement action against persons who violate the Deliberate 
Misconduct Rule. Under federal criminal law, an individual acts with 
``deliberate ignorance'' when that individual attempts to avoid 
criminal prosecution and conviction by deliberately remaining ignorant 
of critical facts, which if clearly known by that individual, would 
provide a basis to criminally prosecute that individual or otherwise 
subject the individual to an agency civil penalty enforcement 
proceeding.\7\
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    \7\ Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 
2068-69 (2011) (stating that defendants cannot avoid criminal 
liability by ``deliberately shielding themselves from clear evidence 
of critical facts that are strongly suggested by the 
circumstances''); Id. at 2069 citing United States v. Jewell, 532 
F.2d 697, 700 (9th Cir. 1976) (en banc) (``[i]t is also said that 
persons who know enough to blind themselves to direct proof of 
critical facts in effect have actual knowledge of those facts''); 
United States v. Gullet, 713 F.2d 1203, 1212 (6th Cir. 1983) 
(stating that deliberate ignorance applies when a criminal defendant 
``deliberately clos[es] his eyes to the obvious risk that he is 
engaging in unlawful conduct'') (alteration added).
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    In addition, this proposed rule would amend 10 CFR 2.202, the NRC's 
regulation governing issuance of orders, including those orders made 
immediately effective. Presently, the Commission may make orders 
immediately effective under 10 CFR 2.202(a)(5) if it finds that the 
public health, safety, or interest so requires or if willful conduct 
caused a violation of the Atomic Energy Act of 1954, as amended (AEA), 
an NRC regulation, license condition, or previously issued Commission 
order. This proposed rule would amend the regulations governing 
challenges to the immediate effectiveness of an order by clarifying: 
(1) Which party bears the burden of proof required in a hearing on a 
challenge to the immediate effectiveness of an order and (2) the 
authority of the presiding officer to call for live testimony in a 
hearing on a challenge to the immediate effectiveness of an order.

Geisen Proceeding

    The deficiencies in the Deliberate Misconduct Rule became apparent 
with the parallel NRC enforcement proceeding and the DOJ criminal 
prosecution of David Geisen. On January 4, 2006, the NRC issued an 
immediately effective order to Mr. Geisen, a former employee at the 
Davis-Besse Nuclear Power Station, barring him from employment in the 
nuclear industry for 5 years.\8\ The order charged Mr. Geisen with 
deliberate misconduct in contributing to the submission of information 
to the NRC that he knew was not complete or accurate in material 
respects. The DOJ later obtained a grand jury indictment against Mr. 
Geisen on charges under 10 U.S.C. 1001 of submitting false statements 
to the NRC.\9\ In the criminal case, the judge gave the jury 
instructions under the prosecution's two alternative theories: the jury 
could find Mr. Geisen guilty if he either knew that he was submitting 
false statements or if he acted with deliberate ignorance of their 
falsity. Mr. Geisen was convicted on a general verdict; that is, the 
jury found Mr. Geisen guilty without making findings in regard to 
either of the prosecution's theories (i.e., whether Mr. Geisen knew 
that the statements were false or whether he acted with deliberate 
ignorance). The United States Court of Appeals for the Sixth Circuit 
upheld Mr. Geisen's conviction on appeal.\10\ Because the Geisen jury 
issued a general verdict, it is unknown under which of the alternative 
theories the jury convicted him.
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    \8\ David Geisen, LBP-09-24, 70 NRC 676 (2009), aff'd, CLI-10-
23, 72 NRC 210 (2010).
    \9\ United States v. Geisen, 2008 WL 6124567 (N.D. Ohio May 2, 
2008).
    \10\ United States v. Geisen, 612 F.3d 471, 485-86 (6th Cir. 
2010), cert. denied, 131 S. Ct. 1813 (2011).
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    In the parallel NRC enforcement proceeding, Mr. Geisen's criminal 
conviction prompted the NRC's Atomic Safety and Licensing Board (the 
ASLB or the Board) to consider whether Mr. Geisen was collaterally 
estopped \11\ from denying the same wrongdoing in the NRC 
proceeding.\12\ A Board majority declined to apply collateral estoppel 
in the NRC proceeding due to uncertainty over whether the general jury 
verdict in the criminal proceeding was based on ``actual knowledge'' or 
``deliberate ignorance.'' \13\ In this regard, both the Board and the 
Commission, on appeal, found that the NRC's Deliberate Misconduct Rule 
did not include deliberate ignorance.\14\
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    \11\ Collateral estoppel precludes a defendant convicted in a 
criminal proceeding from challenging in a subsequent civil 
proceeding any facts that were necessary for the criminal 
conviction. Collateral estoppel applies to quasi-judicial 
proceedings such as enforcement hearings before the NRC. See, e.g., 
SEC v. Freeman, 290 F.Supp.2d 401, 405 (S.D.N.Y. 2003) (``It is 
settled that a party in a civil case may be precluded from 
relitigating issues adjudicated in a prior criminal proceeding and 
that the Government may rely on the collateral estoppel effect of 
the conviction in support of establishing the defendant's liability 
in the subsequent civil action.'') (citations omitted).
    \12\ Geisen, LBP-09-24, 70 NRC at 709-26.
    \13\ Id. at 715-26.
    \14\ The Board stated that ``the [NRC] Staff flatly and 
unmistakably conceded that the `deliberate ignorance' theory is not 
embraced within the `deliberate misconduct' standard that governs 
our proceedings.'' Id. at 715 (alteration added). In its decision, 
the Commission stated ``[t]he distinction between the court's 
`deliberate ignorance' standard and the [NRC's] `deliberate 
misconduct' standard applied in this case is highly significant, 
indeed, decisive. The Staff, when moving for collateral estoppel, 
itself conceded that `the 6th Circuit's deliberate ignorance 
instruction does not meet the NRC's deliberate misconduct 
standard.''' Geisen, CLI-10-23, 72 NRC at 251 (emphasis in the 
original) (alteration added).
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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 NRC could apply its identical actual knowledge standard 
based on the same facts in the criminal case.\15\ Conversely, if the 
verdict was based on deliberate ignorance, the NRC could not apply a 
deliberate ignorance standard because the NRC did not have such a 
standard to apply. Therefore, the Commission determined that the 
potential that the jury convicted on a deliberate ignorance standard 
for which the NRC had no

[[Page 8099]]

corresponding standard to apply prohibited the NRC from applying 
collateral estoppel in its enforcement proceeding against Mr. Geisen.
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    \15\ Geisen, CLI-10-23, 72 NRC at 249.
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    The NRC enforcement proceeding ended in Mr. Geisen's favor, 
creating an anomaly: Mr. Geisen was convicted in federal court under a 
``beyond a reasonable doubt'' criminal standard but exonerated before 
the NRC on a less demanding ``preponderance of the evidence'' standard. 
The Commission's Geisen decision made clear that the Deliberate 
Misconduct Rule, as presently written, does not provide for an 
enforcement action on the basis of deliberate ignorance.

Post-Geisen Proceeding Developments

    In Staff Requirements Memoranda-SECY-10-0074, ``David Geisen, NRC 
Staff Petition for Review of LBP-09-24 (Aug. 28, 2009),'' dated 
September 3, 2010 (ADAMS Accession No. ML102460411), the Commission 
directed the NRC's Office of the General Counsel (OGC) to conduct a 
review of three issues: (1) How parallel NRC enforcement actions and 
DOJ criminal prosecutions affect each other, (2) issuance of 
immediately effective enforcement orders in matters that DOJ is also 
pursuing, and (3) the degree of knowledge required for pursuing 
violations against individuals for deliberate misconduct. In 2011, OGC 
conducted the previously described review. In response, in 2012, the 
Commission directed OGC to develop a proposed rule that would 
incorporate the federal standard of ``deliberate ignorance'' into the 
Deliberate Misconduct Rule. As part of this effort, the Commission 
directed OGC to examine the definitions of ``deliberate ignorance'' 
from all federal circuit courts to aid in developing the most 
appropriate definition of this term for the NRC.
    The NRC is proposing this rule so that NRC enforcement proceedings 
and DOJ criminal prosecutions that involve similar violations are 
carried out in a consistent manner. The proposed rule would incorporate 
the concept of ``deliberate ignorance'' into the Deliberate Misconduct 
Rule. The NRC is also proposing this rule to clarify two aspects of the 
NRC's regulations regarding challenges to the immediate effectiveness 
of orders: (1) The burden of proof and (2) the authority of the 
presiding officer to order live testimony in resolving such a 
challenge. The burden of proof has been defined as meaning the burden 
of persuasion, which is the need to establish the validity of a claim 
or overcome opposing evidence.\16\ A related concept, sometimes 
included within the burden of proof, is the burden of going forward 
with evidence, which is the need to produce enough evidence to make a 
case.\17\
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    \16\ Director, OWCP Department of Labor v. Greenwich Collieries, 
512 U.S. 267, 272-81, 114 S. Ct. 2251, 2255-59 (1994).
    \17\ Id.
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    The NRC has researched the definition of deliberate ignorance used 
by the Supreme Court and federal circuit courts to inform the NRC's 
definition of this term. In drafting the proposed amendments to 10 CFR 
2.202, the NRC reviewed the way in which the ASLB has interpreted the 
burden of proof in hearings on challenges to the immediate 
effectiveness of an order. The NRC also reviewed the NRC's current 
regulations and practices regarding the authority of the presiding 
officer to call for live testimony in hearings on challenges to the 
immediate effectiveness of an order.

Deliberate Misconduct Rule

    The NRC's predecessor agency, the Atomic Energy Commission, 
established the criteria used to conduct enforcement activities in 
1972.\18\ Early guidance did not discuss ``willfulness'' and instead 
advised licensees that a broad range of enforcement actions could be 
applied to a range of violations. In 1979, the Commission directed the 
NRC staff to prepare a comprehensive Enforcement Policy that applied to 
applicants and licensees but not to employees of applicants and 
licensees. The first version of the NRC Enforcement Policy, adopted in 
1982, stated that the Severity Level or significance of a violation may 
be increased upon a finding of willfulness.\19\ The NRC Enforcement 
Policy defined ``willfulness'' as including ``a spectrum of violations 
ranging from deliberate intent to violate or falsify to and including 
careless disregard for requirements.'' \20\ Therefore, under the 
original Enforcement Policy, the NRC could have found that an applicant 
or licensee violated a rule, order, or license condition without regard 
to whether the applicant or licensee intended to commit, or knew that 
it was committing, a violation, but the Severity Level or significance 
depended, in part, on whether the violation was willful. Under the 
current NRC Enforcement Policy, willfulness remains a factor in 
assessing the Severity Level or significance of a violation (NRC 
Enforcement Policy, dated January 28, 2013, ADAMS Accession No. 
ML12340A295).
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    \18\ 37 FR 21962; October 17, 1972.
    \19\ 47 FR 9987; March 9, 1982.
    \20\ Id. at 9990.
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    In 1990, the Commission published the proposed Deliberate 
Misconduct Rule to address willful misconduct by persons not licensed 
by the NRC.\21\ Until that time, a licensee was able to dismiss an 
employee for willful misconduct ``either by its own decision or because 
the NRC formally order[ed] removal of the employee from licensed 
activity.'' \22\ In the 1990 proposed Deliberate Misconduct Rule's 
statement of considerations, the Commission stated its concern that 
such an employee, following dismissal, could seek other nuclear-related 
employment without the NRC's knowledge of this employment or the new 
employer's knowledge of the employee's past willful misconduct.\23\ The 
Commission also noted that ``willful acts of licensees' contractors, 
vendors, or their employees have caused licensees to be in violation of 
Commission requirements.'' \24\ The purpose of the 1990 proposed 
Deliberate Misconduct Rule was to address unlicensed persons who are 
engaged in licensed activities and whose willful misconduct ``causes a 
licensee to be in violation of a Commission requirement or places in 
question the NRC's reasonable assurance of adequate protection of the 
public health and safety.'' \25\
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    \21\ 55 FR 12374; April 3, 1990.
    \22\ Id. at 12374 (alteration added).
    \23\ Id.
    \24\ Id.
    \25\ Id.
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    Under the 1990 proposed Deliberate Misconduct Rule, an act was 
deemed willful if a person knew that the conduct was prohibited or 
exhibited a careless disregard for whether the conduct was prohibited. 
The 1990 proposed Deliberate Misconduct Rule described the term 
``careless disregard'' as behavior that ``connotes a reckless disregard 
or callous . . . indifference toward one's responsibilities or the 
consequences of one's actions.'' \26\ In the statement of 
considerations for the 1990 proposed Deliberate Misconduct Rule, the 
Commission noted that the rule would not be applied against 
``conscientious people'' who simply acted negligently.\27\
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    \26\ Id.
    \27\ Id. at 12377.
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    The Commission published the Deliberate Misconduct Rule as a final 
rule on August 15, 1991 (``1991 final Deliberate Misconduct 
Rule'').\28\ The 1991 final Deliberate Misconduct Rule promulgated the 
following provisions: 10 CFR 30.10, 40.10, 50.5, 60.11, 61.9b,

[[Page 8100]]

70.10, 72.12, and 110.7b. These Deliberate Misconduct Rule provisions 
applied to NRC licensees, any employee of an NRC licensee, and any 
contractor (including a supplier or consultant), subcontractor, or any 
employee of a contractor or subcontractor, of any licensee.\29\ These 
Deliberate Misconduct Rule provisions placed licensed and unlicensed 
persons on notice that they may be subject to enforcement action for 
deliberate misconduct that causes or would have caused, if not 
detected, a licensee to be in violation of any of the Commission's 
requirements, or for deliberately providing to the NRC, a licensee, or 
contractor information that is incomplete or inaccurate in some respect 
material to the NRC.
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    \28\ 56 FR 40664.
    \29\ In a 1998 rulemaking, the Commission expanded the scope of 
the Deliberate Misconduct Rule to additional categories of persons, 
including applicants for NRC licenses (63 FR 1890; January 13, 
1998). The 1998 rule also added new Deliberate Misconduct Rule 
provisions to 10 CFR Parts 52 and 71 (10 CFR 52.9 and 10 CFR 71.11). 
The 10 CFR Part 52 and the 10 CFR Part 71 Deliberate Misconduct Rule 
provisions were later redesignated as 10 CFR 52.4 and 10 CFR 71.8, 
respectively.
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    In addition, the 1991 final Deliberate Misconduct Rule made 
conforming changes to the corresponding ``Scope'' provisions (i.e., 10 
CFR 30.1, 40.2, 50.1, 60.1, 61.1, 70.2, 72.2, and 110.1) to provide 
express notice to all applicable persons that they would be subject to 
the Deliberate Misconduct Rule. Similarly, the 1991 final Deliberate 
Misconduct Rule amended 10 CFR 150.2, ``Scope,'' to provide notice to 
Agreement State licensees conducting activities under reciprocity in 
areas of NRC jurisdiction that they are subject to the applicable 
Deliberate Misconduct Rule provisions (10 CFR 30.10, 40.10, or 70.10).
    The statement of considerations for the 1991 final Deliberate 
Misconduct Rule included the NRC's responses to public comments 
received on the 1990 proposed Deliberate Misconduct Rule. One group of 
comments raised the concern that including ``careless disregard'' as a 
type of willful misconduct would be a disincentive to nuclear-related 
employment.\30\ In response to these comments, the Commission modified 
the rule to only apply to a person who engages in deliberate misconduct 
or who deliberately submits incomplete or inaccurate information, 
narrowing the scope of the Deliberate Misconduct Rule.\31\ The 
Commission predicted that this narrowed scope of the rule would ``not 
differ significantly from the range of actions that might subject the 
individual to criminal prosecution.'' \32\ Yet, the Geisen enforcement 
proceeding and parallel criminal prosecution, previously described, 
indicate that the scope of the current Deliberate Misconduct Rule 
differs from the range of actions subject to criminal prosecution.
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    \30\ 56 FR 40675.
    \31\ Id.
    \32\ Id.
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Immediately Effective Orders

    The Commission's procedures to initiate formal enforcement action 
are found in the regulations set forth in 10 CFR Part 2, Subpart B. 
These regulations include 10 CFR 2.202, ``Orders.'' An order is a 
written NRC directive to modify, suspend, or revoke a license; to cease 
and desist from a given practice or activity; or to take another action 
as appropriate.\33\ The Commission's statutory authority to issue an 
order is Section 161 of the AEA.\34\ The NRC may issue orders in lieu 
of or in addition to civil penalties (Section 2.3.5 of the NRC 
Enforcement Policy (2013)). When the NRC determines that the conduct 
that caused a violation was willful or when the Commission determines 
that the public health, safety, or interest requires immediate action, 
the Commission may make orders immediately effective, meaning the 
subject of the order does not have a prior opportunity for a hearing 
before the order goes into effect.\35\ Making enforcement orders 
``immediately effective'' has been an integral part of 10 CFR 2.202 
since 1962, and Section 9(b) of the Administrative Procedure Act (APA), 
5 U.S.C. 558(c), expressly authorizes immediately effective orders.
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    \33\ 10 CFR 2.202(a).
    \34\ 42 U.S.C. 2201.
    \35\ 10 CFR 2.202(b).
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    On the same day that the Commission published the 1990 proposed 
Deliberate Misconduct Rule, it also published a related proposed rule 
that would expressly allow the Commission to issue orders to unlicensed 
persons, ``when such persons have demonstrated that future control over 
their activities subject to the NRC's jurisdiction is deemed to be 
necessary or desirable to protect public health and safety or to 
minimize danger to life or property or to protect the common defense 
and security.'' \36\ This proposed rule concerned amendments to 10 CFR 
2.202 and other 10 CFR Part 2 provisions.\37\ At the time of the April 
1990 proposed rule, the Commission's regulations only authorized the 
issuance of an order to a licensee. Therefore, the intent of the 1990 
proposed Deliberate Misconduct Rule and its companion April 1990 
proposed rule was to establish a mechanism to issue ``an order . . . to 
an unlicensed person who willfully causes a licensee to be in violation 
of Commission requirements or whose willful misconduct undermines, or 
calls into question, the adequate protection of the public health and 
safety in connection with activities regulated by the NRC under the 
[AEA].'' \38\ These proposed changes were adopted, with some 
modifications, in the 1991 final Deliberate Misconduct Rule.\39\ In 
this regard, the 1991 final Deliberate Misconduct Rule amended 10 CFR 
2.202 and other provisions of 10 CFR Part 2 (i.e., 10 CFR 2.1, 2.201, 
2.204, 2.700, and Appendix C to 10 CFR Part 2), which authorized the 
issuance of an order to unlicensed persons otherwise subject to the 
NRC's jurisdiction.
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    \36\ 55 FR 12370, 12371; April 3, 1990.
    \37\ Id. at 12373-74.
    \38\ Id. at 12372.
    \39\ 56 FR 40664; August 15, 1991.
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    On July 5, 1990, the Commission published another proposed rule 
that would make additional changes to 10 CFR 2.202.\40\ These 
additional changes pertained to orders that are made immediately 
effective. Primarily, the July 5, 1990, proposed rule would have 
required that challenges to immediately effective orders be heard 
expeditiously. The statement of considerations for the July 5, 1990, 
proposed rule noted that ``the Commission believes that a proper 
balance between the private and governmental interests involved is 
achieved by a hearing conducted on an accelerated basis.'' \41\ The 
statement of considerations also stated that a ``motion to set aside 
immediate effectiveness must be based on one or both of the following 
grounds: The willful misconduct charged is unfounded or the public 
health, safety or interest does not require the order to be made 
immediately effective.'' \42\
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    \40\ 55 FR 27645.
    \41\ Id.
    \42\ Id.
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    In addition, the July 5, 1990, proposed rule provided the following 
statement regarding the respective burdens of a party filing a motion 
to challenge the immediate effectiveness aspect of an immediately 
effective order and that of the NRC staff:

    The burden of going forward on the immediate effectiveness issue 
is with the party who moves to set aside the immediate effectiveness 
provision. The burden of persuasion on the appropriateness of 
immediate effectiveness is on the NRC staff.\43\
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    \43\ Id. at 27646.

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

[[Page 8101]]

May 12, 1992.\44\ The Commission acknowledged in the May 12, 1992, 
final rule that ``an immediately effective order may cause a person to 
suffer loss of employment while the order is being adjudicated'' but 
recognized that the effects of health and safety violations are 
paramount over an individual's right of employment.\45\ Accordingly, 
the final rule amended Sec.  2.202(c) ``to allow early challenges to 
the immediate effectiveness aspect of immediately effective orders.'' 
\46\ The final rule also provided for an expedited hearing on both the 
merits of the immediately effective order and a challenge to set aside 
immediate effectiveness. The presiding officer in an immediate 
effectiveness challenge must dispose of the defendant's motion to set 
aside the immediate effectiveness of the order ``expeditiously'' (10 
CFR 2.202(c)(2)(i)), generally within 15 days.\47\ Therefore, the 
Commission struck a balance between the governmental interests in 
protecting public health and safety and the individual interests in 
fairness by requiring that challenges to immediately effective orders 
be heard expeditiously.
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    \44\ 57 FR 20194.
    \45\ Id. at 20195.
    \46\ Id. at 20194.
    \47\ Id. at 20196.
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Burden of Going Forward and Burden of Persuasion

    In opposing the immediate effectiveness aspect of an order, the 
party subject to the order, or respondent, must initiate the proceeding 
by filing affidavits and other evidence, which state that the order and 
the NRC staff's determination that it is necessary to make the order 
immediately effective are ``not based on adequate evidence, but on mere 
suspicion, unfounded allegations, or error.'' \48\ The respondent's 
obligation to challenge the order is known as the ``burden of going 
forward.'' \49\ Section 2.202, however, has been interpreted to mean 
that the NRC staff bears the ``burden of persuasion'' to demonstrate 
that the order itself and the immediate effectiveness determination are 
supported by ``adequate evidence.'' \50\ In a 2005 matter, the Board 
described what the NRC staff must prove and stated:
---------------------------------------------------------------------------

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

    The staff must satisfy a two-part test: it must demonstrate that 
adequate evidence--i.e. reliable, probative and substantial (but not 
preponderant) evidence--supports a conclusion that (1) the licensee 
violated a Commission requirement (10 C.F.R. Sec.  2.202(a)(1)), and 
(2) the violation was `willful,' or the violation poses a risk to 
`the public health, safety, or interest' that requires immediate 
---------------------------------------------------------------------------
action (id. Sec.  2.202(a)(5)).\51\

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

    Although Mr. Geisen never challenged the immediate effectiveness 
aspect of the Commission's order (which barred him from involvement in 
all NRC-licensed activities for 5 years), one of the Board's judges 
raised the concern that 10 CFR 2.202(c)(2)(i) could be interpreted to 
place the burden of persuasion on the party subject to the order to 
show that the order is based on mere suspicion, unfounded allegations, 
or error.\52\ This proposed rule would clarify that the burden of 
persuasion is the obligation of the NRC staff, not the party subject to 
the order.
---------------------------------------------------------------------------

    \52\ Geisen, ``Additional Views of Judge Farrar,'' LBP-09-24, 70 
NRC at 801, n.12 (``To succeed under the terms of [10 CFR 
2.202(c)(2)(i)], the challenge brought by the Order's target must 
show that `the order, including the need for immediate 
effectiveness, is not based on adequate evidence but on mere 
suspicion, unfounded allegations, or error.' In addition to having 
the burden on immediate effectiveness, the target is apparently 
expected to address the merits at that point as well, as is 
indicated by the next sentence, which requires the challenge to 
`state with particularity the reasons why the order is not based on 
adequate evidence' and to `be accompanied by affidavits or other 
evidence relied on.' 10 C.F.R. Sec.  2.202(c)(2)(i). All in 20 days, 
unless extended. id. Sec.  2.202(a)(2)'') (emphasis in the 
original).
---------------------------------------------------------------------------

Authority of the Presiding Officer To Order Live Testimony

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

    It is expected that the presiding officer normally will decide 
the question of immediate effectiveness solely on the basis of the 
order and other filings on the record. The presiding officer may 
call for oral argument. However, an evidentiary hearing is to be 
held only if the presiding officer finds the record is inadequate to 
reach a proper decision on immediate effectiveness. Such a situation 
is expected to occur only rarely.\53\

    \53\ 55 FR 27645-46.
---------------------------------------------------------------------------

    The May 12, 1992, final rule, however, simply stated that ``[t]he 
presiding officer may call for oral argument but is not required to do 
so.'' \54\ Section 2.319 outlines the presiding officer's authority to 
``conduct a fair and impartial hearing according to law, and to take 
appropriate action to control the prehearing and hearing process, to 
avoid delay and maintain order,'' including the power to examine 
witnesses, but this power is not specified in 10 CFR 2.202.
---------------------------------------------------------------------------

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

III. Discussion of Proposed Changes

Deliberate Misconduct Rule

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

[[Page 8102]]

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

    \55\ 131 S. Ct. 2060 (2011).
    \56\ The term ``willful blindness'' is akin to the term 
``deliberate ignorance.'' In Global-Tech Appliances, the Court 
stated that ``a willfully blind defendant is one who takes 
deliberate actions to avoid confirming a high probability of 
wrongdoing and who can almost be said to have actually known the 
critical facts.'' Global-Tech Appliances, 131 S. Ct. at 2070-71.
    \57\ The First, Third, Fifth, Sixth, Seventh, Eighth, Ninth, 
Tenth, and Eleventh Circuit Courts of Appeals have incorporated 
willful blindness or deliberate ignorance into their pattern or 
model jury instructions. Pattern or model jury instructions are 
plain language formulations of case law that judges may provide to 
juries as legal explanations. These jury instructions are given 
legal weight through their use in trials and subsequent approval of 
that use on appeal.
    \58\ The Second Circuit, see, e.g., United States v. Coplan, 703 
F.3d 46 (2d Cir. 2012), and Fourth Circuit, see, e.g., United States 
v. Poole, 640 F.3d 114 (4th Cir. 2011), have applied deliberate 
ignorance or willful blindness in case law.
    \59\ United States v. Alston-Graves, 435 F.3d 331, 337 (D.C. 
Cir. 2006).
---------------------------------------------------------------------------

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

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

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

Immediately Effective Orders

    This proposed rule would amend 10 CFR 2.202(c)(2) to clarify that 
in any challenge to the immediate effectiveness of an order, the NRC 
staff bears the burden of persuasion; whereas the party challenging the 
order bears the burden of going forward.\62\ Specifically, the proposed 
amendment would state that the NRC staff must show that (1) adequate 
evidence supports the grounds for the order and (2) immediate 
effectiveness is warranted.\63\
---------------------------------------------------------------------------

    \62\ The party challenging the order has the obligation to 
initiate the proceeding, namely, by filing the appropriate motion 
under 10 CFR 2.202(c)(2)(i). This motion ``must state with 
particularity the reasons why the order is not based on adequate 
evidence and must be accompanied by affidavits or other evidence 
relied on.'' 10 CFR 2.202(c)(2)(i).
    \63\ The Administrative Procedure Act provides ``[e]xcept as 
otherwise provided by statute, the proponent of a rule or order has 
the burden of proof.'' 5 U.S.C. 556(d).
---------------------------------------------------------------------------

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

Conforming Amendments

    The NRC regulation, 10 CFR 150.2, ``Scope,'' provides notice to 
Agreement State licensees conducting activities under reciprocity in 
areas of NRC jurisdiction that they are subject to the applicable NRC 
Deliberate Misconduct Rule provisions. When the NRC first promulgated 
the Deliberate Misconduct Rule in 1991, it failed to list 10 CFR 61.9b 
as a cross reference in 10 CFR 150.2 (at the time, 10 CFR 150.2 listed 
10 CFR 30.10, 40.10, and 70.10 as the Deliberate Misconduct Rule 
provisions applicable to Agreement State licensees conducting 
activities under reciprocity in areas of NRC jurisdiction).
    When first promulgated on January 13, 1998, the NRC designated the 
10 CFR Part 71 Deliberate Misconduct Rule provision as 10 CFR 71.11; 
\64\ the NRC made the appropriate conforming amendment to 10 CFR 150.2, 
by listing 10 CFR 71.11 as a cross reference.\65\ The NRC later 
redesignated the provision as 10 CFR 71.8,\66\ but did not make a 
conforming amendment to update the cross-reference in 10 CFR 150.2. The 
current 10 CFR 150.2 provision still lists the 10 CFR Part 71 
Deliberate Misconduct Rule provision as 10 CFR 71.11.
---------------------------------------------------------------------------

    \64\ 63 FR 1899.
    \65\ 63 FR 1901.
    \66\ In a 2004 rulemaking amending its regulations concerning 
the packaging and transport of radioactive materials, the NRC 
renumbered 10 CFR 71.11 to 10 CFR 71.8 (69 FR 3698, 3764, and 3790; 
January 26, 2004).
---------------------------------------------------------------------------

    This proposed rule would make the appropriate conforming changes to 
10 CFR 150.2 by adding a cross reference to 10 CFR 61.9b and deleting 
the cross reference to 10 CFR 71.11 and replacing it with 10 CFR 71.8.

IV. Section-by-Section Analysis

Deliberate Misconduct Rule Changes

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

[[Page 8103]]

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

Immediate Effectiveness of Orders Rule Changes

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

Conforming Amendments to 10 CFR 150.2

    This proposed rule would revise the last sentence of 10 CFR 150.2 
by adding a cross reference to 10 CFR 61.9b and deleting the cross 
reference to 10 CFR 71.11 and replacing it with 10 CFR 71.8.

Administrative Changes to Authority Citations

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

V. Plain Writing

    The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal 
agencies to write documents in a clear, concise, and well-organized 
manner. The NRC has written this document to be consistent with the 
Plain Writing Act as well as the Presidential Memorandum, ``Plain 
Language in Government Writing,'' published June 10, 1998 (63 FR 
31883). In complying with this directive, proposed editorial changes 
have been made to the various NRC regulations that are the subject of 
this proposed

[[Page 8104]]

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

VI. Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995, 
Public Law 104-113, requires that Federal agencies use technical 
standards that are developed by voluntary, private sector, consensus 
standards bodies unless using such a standard is inconsistent with 
applicable law or is otherwise impractical. In this rule, the NRC is 
proposing to amend its Deliberate Misconduct Rule and two aspects of 
challenges to the immediate effectiveness of NRC enforcement orders: 
(1) The burden of proof and (2) the authority of the presiding officer 
to order live testimony in resolving such a challenge. This action does 
not constitute the establishment of a government-unique standard as 
defined in Office of Management and Budget (OMB) Circular A-119 (1998).

VII. Environmental Impact: Categorical Exclusion

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

VIII. Paperwork Reduction Act Statement

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

Public Protection Notification

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

IX. Regulatory Analysis

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

X. Regulatory Flexibility Act Certification

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

XI. Compatibility of Agreement State Regulations

    Under the ``Policy Statement on Adequacy and Compatibility of 
Agreement State Programs'' approved by the Commission on June 30, 1997, 
and published in the Federal Register (62 FR 46517; September 3, 1997), 
this proposed rule will be a matter of compatibility between the NRC 
and the Agreement States, thereby providing consistency among the 
Agreement States and the NRC requirements. The NRC staff analyzed the 
proposed rule in accordance with the procedure established within Part 
III, ``Categorization Process for NRC Program Elements,'' of Handbook 
5.9 to Management Directive 5.9, ``Adequacy and Compatibility of 
Agreement State Programs'' (a copy of which may be viewed at http://www.nrc.gov/reading-rm/doc-collections/management-directives/).
    The NRC program elements (including regulations) are placed into 
four compatibility categories (See the Compatibility Table in this 
section). In addition, the NRC program elements can also be identified 
as having particular health and safety significance or as being 
reserved solely to the NRC. Compatibility Category A program elements 
are basic radiation protection standards and scientific terms and 
definitions that are necessary to understand radiation protection 
concepts. An Agreement State should adopt Category A program elements 
in an essentially identical manner to provide uniformity in the 
regulation of agreement material on a nationwide basis. Compatibility 
Category B program elements apply to activities that have direct and 
significant effects in multiple jurisdictions. An Agreement State 
should adopt Category B program elements in an essentially identical 
manner. Compatibility Category C program elements do not meet the 
criteria of Category A or B but contain the essential objectives of 
which an Agreement State should adopt to avoid conflict, duplication, 
gaps, or other conditions that would jeopardize an orderly pattern in 
the regulation of agreement material on a nationwide basis. An 
Agreement State should adopt the essential objectives of the Category C 
program elements. Compatibility Category D program elements do not meet 
any of the criteria of Category A, B, or C and, therefore, do not need 
to be adopted by Agreement States for purposes of compatibility.
    Health and Safety (H&S) program elements are not required for 
compatibility but are identified as

[[Page 8105]]

having a particular health and safety role (i.e., adequacy) in the 
regulation of agreement material within the State. Although not 
required for compatibility, the State should adopt program elements in 
this H&S category based on those of the NRC that embody the essential 
objectives of the NRC program elements because of particular health and 
safety considerations. Compatibility Category NRC program elements 
address areas of regulation that cannot be relinquished to Agreement 
States under the AEA, or the provisions of 10 CFR. These program 
elements are not adopted by Agreement States. The following table lists 
the parts and sections that will be revised and their corresponding 
categorization under the ``Policy Statement on Adequacy and 
Compatibility of Agreement State Programs.'' If the NRC promulgates the 
proposed rule's amendments in a final rule, the Agreement States have 3 
years from the final rule's effective date, as noted in the Federal 
Register, to adopt compatible regulations.

                                 Table 1--Compatibility Table for Proposed Rule
----------------------------------------------------------------------------------------------------------------
                                                                                       Compatibility
             Section                    Change              Subject      ---------------------------------------
                                                                               Existing               New
----------------------------------------------------------------------------------------------------------------
                                                     Part 2
----------------------------------------------------------------------------------------------------------------
2.202(c)........................  Revised...........  Orders............  NRC...............  NRC.
----------------------------------------------------------------------------------------------------------------
                                                     Part 30
----------------------------------------------------------------------------------------------------------------
30.10(a) and (c)................  Revised...........  Deliberate          C.................  C.
                                                       misconduct..
----------------------------------------------------------------------------------------------------------------
                                                     Part 40
----------------------------------------------------------------------------------------------------------------
40.10(a) and (c)................  Revised...........  Deliberate          C.................  C.
                                                       misconduct..
----------------------------------------------------------------------------------------------------------------
                                                     Part 50
----------------------------------------------------------------------------------------------------------------
50.5(a) and (c).................  Revised...........  Deliberate          NRC...............  NRC.
                                                       misconduct..
----------------------------------------------------------------------------------------------------------------
                                                     Part 52
----------------------------------------------------------------------------------------------------------------
52.4(b) and (c).................  Revised...........  Deliberate          NRC...............  NRC.
                                                       misconduct..
----------------------------------------------------------------------------------------------------------------
                                                     Part 60
----------------------------------------------------------------------------------------------------------------
60.11(a) and (c)................  Revised...........  Deliberate          NRC...............  NRC.
                                                       misconduct..
----------------------------------------------------------------------------------------------------------------
                                                     Part 61
----------------------------------------------------------------------------------------------------------------
61.9b(a) and (c)................  Revised...........  Deliberate          C.................  C.
                                                       misconduct..
----------------------------------------------------------------------------------------------------------------
                                                     Part 63
----------------------------------------------------------------------------------------------------------------
63.11(a) and (c)................  Revised...........  Deliberate          NRC...............  NRC.
                                                       misconduct..
----------------------------------------------------------------------------------------------------------------
                                                     Part 70
----------------------------------------------------------------------------------------------------------------
70.10(a) and (c)................  Revised...........  Deliberate          C.................  C.
                                                       misconduct..
----------------------------------------------------------------------------------------------------------------
                                                     Part 71
----------------------------------------------------------------------------------------------------------------
71.8(b) and (d).................  Revised...........  Deliberate          C.................  C.
                                                       misconduct..
----------------------------------------------------------------------------------------------------------------
                                                     Part 72
----------------------------------------------------------------------------------------------------------------
72.12(a) and (c)................  Revised...........  Deliberate          NRC...............  NRC.
                                                       misconduct..
----------------------------------------------------------------------------------------------------------------
                                                     Part 76
----------------------------------------------------------------------------------------------------------------
76.10(a) and (c)................  Revised...........  Deliberate          NRC...............  NRC.
                                                       misconduct..
----------------------------------------------------------------------------------------------------------------
                                                    Part 110
----------------------------------------------------------------------------------------------------------------
110.7b(a) and (c)...............  Revised...........  Deliberate          NRC...............  NRC.
                                                       misconduct..
----------------------------------------------------------------------------------------------------------------
                                                    Part 150
----------------------------------------------------------------------------------------------------------------
150.2...........................  Revised...........  Deliberate          D.................  D.
                                                       misconduct..
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------


[[Page 8106]]

XII. Backfitting and Issue Finality

    The proposed rule would revise the Deliberate Misconduct Rule as it 
appears in various sections of 10 CFR Chapter I. The proposed rule 
would revise the Deliberate Misconduct Rule by incorporating the 
concept of deliberate ignorance as an additional basis on which to take 
enforcement action against persons who violate the rule. The proposed 
rule would also revise the immediate effectiveness provisions at 10 CFR 
2.202 to state that the respondent bears the burden of going forward 
with evidence to challenge immediate effectiveness and the NRC staff 
bears the burden of persuasion on whether adequate evidence supports 
immediate effectiveness. The proposed rule would also revise 10 CFR 
2.202 to clarify that the presiding officer is permitted to order live 
testimony, either by its own motion, or upon the motion of any party to 
the proceeding.
    The proposed revisions to the Deliberate Misconduct Rule would 
clarify the NRC's prohibition of deliberate misconduct to provide 
notice of proscribed conduct to all affected persons. These revisions 
would not change, modify, or affect the design, procedures, or 
regulatory approvals protected under the various NRC backfitting and 
issue finality provisions. Accordingly, the proposed revisions to the 
Deliberate Misconduct Rule, if promulgated as a final rule, would not 
represent backfitting imposed on any entity protected by the 
backfitting provisions in 10 CFR Parts 50, 70, 72, or 76, nor would the 
proposed revisions be inconsistent with any issue finality provision in 
10 CFR Part 52.
    The proposed revisions to 10 CFR 2.202 would clarify the agency's 
adjudicatory procedures with respect to challenges to immediate 
effectiveness of orders. These revisions would not change, modify, or 
affect the design, procedures, or regulatory approvals protected under 
the various NRC backfitting and issue finality provisions. Accordingly, 
the proposed revisions to the adjudicatory procedures, if adopted in 
final form, would not represent backfitting imposed on any entity 
protected by backfitting provisions in 10 CFR Parts 50, 70, 72, or 76, 
nor would the proposed revisions be inconsistent with any issue 
finality provision in 10 CFR Part 52.

List of Subjects

10 CFR Part 2

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

10 CFR Part 30

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

10 CFR Part 40

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

10 CFR Part 50

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

10 CFR Part 52

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

10 CFR Part 60

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

10 CFR Part 61

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

10 CFR Part 63

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

10 CFR Part 70

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

10 CFR Part 71

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

10 CFR Part 72

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

10 CFR Part 76

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

10 CFR Part 110

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

10 CFR Part 150

    Criminal penalties, Hazardous materials transportation, 
Intergovernmental relations, Nuclear materials, Reporting and 
recordkeeping requirements, Security measures, Source material, Special 
nuclear material.
    For the reasons set out in the preamble and under the authority of 
the Atomic Energy Act of 1954, as amended; the Energy Reorganization 
Act of 1974, as amended; and 5 U.S.C. 553; the NRC is proposing to 
amend 10 CFR parts 2, 30, 40, 50, 52, 60, 61, 63, 70, 71, 72, 76, 110, 
and 150 as follows:

PART 2--AGENCY RULES OF PRACTICE AND PROCEDURE

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

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

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

[[Page 8107]]

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

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


Sec.  2.202  Orders.

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

PART 30--RULES OF GENERAL APPLICABILITY TO DOMESTIC LICENSING OF 
BYPRODUCT MATERIAL

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

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

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

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


Sec.  30.10  Deliberate misconduct.

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

[[Page 8108]]

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

PART 40--DOMESTIC LICENSING OF SOURCE MATERIAL

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

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

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

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


Sec.  40.10  Deliberate misconduct.

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

PART 50--DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION 
FACILITIES

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

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

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

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


Sec.  50.5  Deliberate misconduct.

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

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

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

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

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


Sec.  52.4  Deliberate misconduct.

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

[[Page 8109]]

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

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

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

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

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


Sec.  60.11  Deliberate misconduct.

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

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

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

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

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


Sec.  61.9b  Deliberate misconduct.

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

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

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

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

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


Sec.  63.11  Deliberate misconduct.

    (a) * * *
    (2) Deliberately submit to the NRC, a licensee, an applicant, or a 
licensee's or applicant's contractor or subcontractor, information:
    (i) That the person submitting the information knows to be 
incomplete or inaccurate in some respect material to the NRC; or
    (ii) When the person submitting the information subjectively 
believes that there is a high probability that the information 
submitted is incomplete or inaccurate in some respect material to the 
NRC but takes deliberate action to remain ignorant of the 
incompleteness or inaccuracy of that information.
* * * * *
    (c) For the purposes of paragraph (a)(1) of this section, 
deliberate misconduct by a person means:
    (1) An intentional act or omission that the person knows would 
cause a licensee or applicant to be in violation of any rule, 
regulation, or order; or any

[[Page 8110]]

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

PART 70--DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL

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

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

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

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


Sec.  70.10  Deliberate misconduct.

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

PART 71--PACKAGING AND TRANSPORTATION OF RADIOACTIVE MATERIAL

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

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

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

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


Sec.  71.8  Deliberate misconduct.

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

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

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

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

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

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

[[Page 8111]]

Sec.  72.12  Deliberate misconduct.

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

PART 76--CERTIFICATION OF GASEOUS DIFFUSION PLANTS

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

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

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

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


Sec.  76.10  Deliberate misconduct.

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

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

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

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

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

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


Sec.  110.7b  Deliberate misconduct.

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

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

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

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

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

[[Page 8112]]

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

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


Sec.  150.2  Scope.

    * * * This part also gives notice to all persons who knowingly 
provide to any licensee, applicant for a license or certificate or 
quality assurance program approval, holder of a certificate or quality 
assurance program approval, contractor, or subcontractor, any 
components, equipment, materials, or other goods or services that 
relate to a licensee's, certificate holder's, quality assurance program 
approval holder's or applicant's activities subject to this part, that 
they may be individually subject to NRC enforcement action for 
violation of Sec. Sec.  30.10, 40.10, 61.9b, 70.10, and 71.8.

    Dated at Rockville, Maryland, this 30th day of January 2014.

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