S88-236.txt

S88-236

333

UNITED STATES

NUCLEAR REGULATORY COMMISSION

WASHINGTON, D.C. 20555

October 20, 1988

MEMORANDUM FOR: William C. Parler, General Counsel

FROM: Samuel J. Chilk, Secretary

SUBJECT: STAFF REQUIREMENTS: SECY-88-236 -

MEMORANDUM OF UNDERSTANDING WITH THE

DEPARTMENT OF JUSTICE

This is to inform you that the Commission, with all Commissioners

agreeing, has approved the adoption of the subject attached

Memorandum of Understanding with the Department of Justice.

Accordingly, you may submit the appropriate MOU to the Chairman

for his signature.

(OGC) (SECY SUSPENSE: 10/24/88)

Attachment:

As Stated

cc: Chairman Zech

Commissioner Roberts

Commissioner Carr

Commissioner Rogers

EDO

334

MEMORANDUM OF UNDERSTANDING BETWEEN THE NUCLEAR REGULATORY COMMISSION

AND THE DEPARTMENT OF JUSTICE

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I. Purpose:

The Nuclear Regulatory Commission (NRC) and the Department of Justice

(DOJ)

enter into this agreement 1) to provide for coordination of matters th

at could

lead both to enforcement action by the NRC as well as criminal prosecu

tion by

DOJ, and 2) to facilitate the exchange of information relating to matt

ers

within their respective jurisdictions. This agreement does not affect

the

procedures and responsibilities set forth in the April 23, 1979 Memora

ndum of

Understanding between the NRC and the Federal Bureau of Investigation

regarding cooperation concerning threats, theft, or sabotage in the U.

S.

nuclear industry. Similarly, this agreement does not apply to those m

atters

arising from internal investigations conducted by the NRC Office of In

spector

and Auditor.

This Memorandum of Understanding is not intended to, does not, and may

not be

relied upon to, create any rights or benefits, substantive or procedur

al,

enforceable at law by a party to litigation with the United States. N

or are

any limitations hereby placed on otherwise lawful litigative prerogati

ves of

DOJ.

II. Background:

Under federal statutes, the NRC has the responsibility to protect the

radiological health and safety of the public, the public interest, the

common

defense and security and the environment (hereinafter collectively ref

erred to

as public health and safety), from hazards that might arise from the m

aterial

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and facilities which it regulates. The enforcement program of the NRC

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is

designed to fulfill these responsibilities by ensuring compliance with

NRC

requirements, obtaining prompt correction of violations and adverse co

nditions

affecting safety, encouraging improvement of licensee performance, and

deterring future violations. in contrast, criminal prosecutions for w

illful

violations of NRC requirements are the responsibility of the DOJ. Suc

h

prosecutions provide an additional tool to assure compliance and to de

ter

future violations. Therefore, it is useful and desirable for the NRC

and the

DOJ to coordinate to the maximum practicable extent their different

responsibilities.

Under the Atomic Energy Act of 1954, as amended, the NRC has the autho

rity to

conduct such investigations as it may deem necessary or proper to assi

st it in

determining whether enforcement or other regulatory action is required

under

the Act, or any regulations, licenses, or orders issued thereunder.

Enforcement actions within NRC authority include license revocations,

suspensions and modifications, cease and desist orders, civil penaltie

s and

notices of violation. The NRC has the authority to take such action a

s it

deems necessary to protect the public health and safety, including the

authority when appropriate to take immediate action.

The Department of Justice has the responsibility to determine whether

to

institute criminal prosecution for violations of all federal, statutes

,

including the Atomic Energy Act of 1954, as amended. Such violations

are

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3

typically developed and brought to the attention of DOJ by law enforce

ment or

investigative agencies such as the Federal Bureau of Investigation, th

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e Postal

Inspection Service, and the various Treasury enforcement agencies. Si

milarly,

suspected criminal violations of the Atomic Energy Act, as amended, or

Title

18 of the United States Code may be identified during the course of NR

C

investigations and referred to DOJ for prosecutive determination.

Thus, both the NRC and DOJ have authority and responsibility to invest

igate

and take action for certain violations that may arise out of the same

factual

matters. Although each agency will carry out its statutory responsibi

lities

independently, the agencies agree that the public health and safety wo

uld be

enhanced by cooperation and timely consultation on proposed enforcemen

t

actions where both civil and criminal violations appear to exist, and

by the

timely exchange of information of mutual interest. As an example, it

may be

appropriate in some cases for the NRC to stay its hand pending a crimi

nal

prosecution. Conversely, in other cases the public health and safety

may

require immediate NRC action which could impact a potential criminal

prosecution. Both agencies recognize that these enforcement decisions

are

inherently matters of judgment for each agency to decide for itself, w

ith due

regard, however, for the views of the other.

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4

111. Areas of Cooperation:

A. DOJ Notification to Information Concerning Public

Health and Safety

Should DOJ learn of or discover health or safety related information

concerning a matter within the jurisdiction of the NRC, and not alread

y

reasonably known to the NRC, DOJ shall communicate such information to

the NRC

as soon as practicable, unless such information is determined by DOJ t

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o be

grand jury material. See Rule 6(e) of the Federal Rules of Criminal

Procedure.

Should DOJ, during grand jury proceedings, discover health or safety r

elated

information concerning a matter within the jurisdiction of the NRC, an

d not

already reasonably known to the NRC, which may warrant immediate regul

atory

action to protect the public health and safety, DOJ promptly will seek

a court

order, pursuant to the inherent authority of the court to supervise th

e grand

jury, for disclosure of such information to the NRC for use in connect

ion with

its safety enforcement responsibilities.

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5

B NRC Notification to DOJ of Suspected Criminal Violations

If NRC learns of or develops information regarding suspected criminal

violations on matters not within the regulatory jurisdiction of the NR

C, the

NRC will provide the information regarding such suspected criminal vio

lations

to the appropriate investigative agency having jurisdiction over the m

atter.

Should NRC learn of or develop information regarding any suspected cri

minal

violations, including Atomic Energy Act violations, on matters within

the

regulatory jurisdiction of NRC, it will notify DOJ in the following ma

nner.

With respect to matters not involving special circumstances, as descri

bed

below, the NRC's Director, Office of Investigations (OI), will formall

y refer

the matter to DOJ for prosecutive determination if, on completion of i

ts

investigation, the Director, 01, has determined that sufficient eviden

ce has

been developed to support a reasonable suspicion that a criminal viola

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tion has

occurred. Whenever any of the special circumstances listed below occu

rs, and

the Director, OI, has a reasonable suspicion that a criminal violation

has

occurred, the Director of OI will promptly notify the DOJ of a matter

involving such special circumstances, notwithstanding the fact that an

investigation has not yet been completed by NRC. The special circumst

ances

involve:

(1) a matter where death or serious bodily injury is involved;

(2) a matter under investigation which is likely to generate substant

ial

national news media attention;

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(3) a matter where there is evidence of ongoing activity designed to

obstruct the investigation;

(4) a matter which may require extraordinary investigative measures

which require legal assistance from DOJ.

When a matter arises in which the NRC concludes that regulatory action

is

necessary to protect the public health and safety, or that it is neces

sary

to propose a civil penalty, and the Director, Office of Enforcement (O

E), has

been informed by the Director, OI, that there is a reasonable suspicio

n that a

criminal violation has occurred, the Director of DE will promptly noti

fy the

DOJ of such matter, notwithstanding the fact that an investigation has

not yet

been completed by NRC. Any action by the NRC is to be coordinated wit

h DOJ as

prescribed in Section C. below.

Notification to DOJ will not normally result in cessation of the NRC

investigation.

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C. Procedure When NRC Regulatory Activities Run Parallel to or May

Affect Future DOJ Activity

NRC regulatory activities with respect to matters that have been refer

red to

DOJ for criminal prosecution, or to which the notification provisions

of

Section B. apply, shall be coordinated as follows:

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1. If the NRC concludes at any time that it lacks reasonable assuranc

e

that activities authorized by a license are being conducted without en

dangering the health and safety of the public and the NRC concludes that

immediate action is required to protect the public health, safety, or

interest, it will proceed with such action as is necessary to abate th

e

immediate problem. If time permits, the NRC shall notify DOJ of its p

roposed

action prior to acting, but, in any event, shall notify DOJ of its act

ion as

soon as practicable. This paragraph shall apply only to those situati

ons

which do not allow sufficient time for reasonable consultation.

2. If the NRC concludes that regulatory action is necessary in the

public interest, other than the actions described in paragraphs 1 and

3

herein, the NRC shall first consult with DOJ concerning its contemplat

ed

action. The NRC shall take into account the views and concerns of DOJ

and

proceed in a manner that accommodates such views and concerns to the f

ullest

extent possible, consistent with the regulatory action required. Such

cooperation shall, at the staff level, include the seeking of a stay,

upon

DOJ's request, for a reasonable period of time of discovery and hearin

g rights

during the regulatory proceeding to accommodate the needs of a crimina

l

investigation or prosecution, provided that DOJ supports such action w

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ith

appropriate affidavits or testimony as requested by the presiding offi

cer.

3. If the NRC concludes that it is necessary to propose a civil

penalty, it shall notify DOJ of its contemplated action, and shall def

er the

initiation of such proceeding until DOJ either concludes its criminal

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8

investigation/prosecution or consents to the action, except that if a

statute

of limitations bar to a civil penalty proceeding is imminent, the NRC

may

initiate such proceeding after consultation with DOJ. In such event,

the NRC

staff shall accommodate the needs of DOJ by seeking a stay, upon DOJ's

request

and with DOJ support as described in paragraph 2 above, for a reasonab

le

period of time of discovery and hearing rights during the civil penalt

y

proceeding.

D. Time Frame for Notification in Matters Referred to DOJ

1. If, on completion of its investigation, the NRC concludes that civ

il

enforcement action is appropriate, it will notify DOJ of its contempla

ted

action normally within 45 days of its referral to DOJ.

2. DOJ will notify the NRC, normally within 60 days of the referral,

of

its preliminary decision as to whether a criminal investigation or pro

secution

is warranted.

E. NRC Assistance to DOJ

The NRC will make reasonable efforts, at DOJ's request, to provide inf

ormal

assistance regarding applicable NRC requirements, technical issues and

factual

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circumstances. Such assistance should be requested directly from the

Director, Office of Investigations, who will forward requests for tech

nical

assistance to the Deputy Executive Director for Regional Operations.

A

request that one or more NRC investigators be assigned to the DOJ

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investigation or that NRC technical experts be assigned to assist DOJ

and the

grand jury should be made in writing. Such requests must bear the sig

nature of

a United States Attorney or Deputy Assistant Attorney General, as

appropriate. These requests will be considered by NRC on a case-by-ca

se

basis.

F. Exchange of Information Related to Civil or Criminal Enforcement

Following a DOJ decision not to prosecute a referred case, or at the

conclusion of a criminal proceeding, DOJ will provide NRC, upon its re

quest,

information not protected from disclosure by Rule 6(e), Fed.R.Crim.P.,

relevant to the associated civil case. Similarly, NRC will provide

information to DOJ, upon its request, on matters being considered by D

OJ.

IV. Implementation:

The DOJ official responsible for implementation of the notification re

sponsibilities of this agreement is the Chief, General Litigation and Lega

l Advice

Section, Criminal Division; the NRC official responsible for implement

ation of

the notification responsibilities of this agreement with respect to in

formation regarding suspected criminal violations is the Director, Office o

f

Investigations; the NRC official responsible for the notification resp

onsibilities of this agreement with respect to enforcement action is the D

irector,

Office of Enforcement, or the Assistant General Counsel for Enforcemen

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t, as

appropriate.

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V. Effective Date:

This agreement is effective when signed by both parties.

Chairman

U.S. Nuclear Regulatory Commission

Date:

Assistant Attorney General

Criminal Division

U.S. Department of Justice

Date:

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