IN RESPONSE, PLEASE 

 REFER TO: M150908A 

September 8, 2015 

MEMORANDUM FOR: Margaret Doane 

 General Counsel 

 

 Brooke P. Clark, Director 

Office of Commission Appellate Adjudication 

FROM: Richard J. Laufer, Acting Secretary /RA/ 

SUBJECT: STAFF REQUIREMENTS - AFFIRMATION SESSION, 9:25 A.M., 

TUESDAY, SEPTEMBER 8, 2015, COMMISSIONERS' 

CONFERENCE ROOM, ONE WHITE FLINT NORTH, 

ROCKVILLE, MARYLAND (OPEN TO PUBLIC ATTENDANCE) 1

I. SECY-15-0035 – Final Rule: Hearings on Challenges to the Immediate Effectiveness of 

Orders (10 CFR Parts 2 and 150; RIN 3150-AJ27)

The Commission approved a final rule amending 10 CFR Part 2 to clarify the Commission’s 

procedures governing hearings on challenges to immediately effective orders and to make 

minor conforming changes to 10 CFR Part 150, as shown in the enclosure. The Commission 

certifies that the rule will not have a significant impact on a substantial number of small entities 

under the Regulatory Flexibility Act. 

The Federal Register notice should be reviewed by the Rulemaking, Directives, and Editing 

Branch in the Office of Administration and forwarded to the Office of the Secretary for signature 

and publication. 

II. SECY-15-0082 - DTE Electric Co. (Fermi Nuclear Power Plant, Unit 2), Applicant’s 

Appeal of LBP-15-5 

The Commission approved a Memorandum and Order addressing DTE Electric Company’s 

appeal of the Atomic Safety and Licensing Board’s decision to grant a hearing in the Fermi 

license renewal proceeding. The Memorandum and Order reverses the Board’s decision and 

directs the Board to terminate the proceeding. 

(Subsequently, on September 8, 2015, the Acting Secretary signed the Memorandum and 

Order.) 

 

 1 Section 201 of the Energy Reorganization Act, 42 U.S.C. Section 5841, provides that 

action of the Commission shall be determined by a Amajority vote of the members present.@ 

Chairman Burns, and Commissioners Ostendorff, and Baran were present in the Conference 

Room. Commissioner Svinicki participated in the meeting via speakerphone. 
Enclosure: 

As stated 

cc: Chairman Burns 

 Commissioner Svinicki 

 Commissioner Ostendorff 

 Commissioner Baran 

 EDO 

 OGC 

 CFO 

 OCAA 

 OCA 

 OIG 

 OPA 

 Office Directors, Regions, ACRS, ASLBP (via E-Mail) 

 PDR 

 
Enclosure 

[7590-01-P] 

NUCLEAR REGULATORY COMMISSION 

10 CFR Parts 2 and 150 

[NRC-2013-0132] 

RIN 3150-AJ27 

Hearings on Challenges to the Immediate Effectiveness of Orders 

AGENCY: Nuclear Regulatory Commission. 

ACTION: Final rule. 

SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is amending its 

regulations regarding challenges to the immediate effectiveness of NRC enforcement 

orders to clarify the burden of proof and to clarify the authority of the presiding officer to 

order live testimony in resolving these challenges. The NRC has decided to not 

incorporate the deliberate ignorance standard into its Deliberate Misconduct Rule as 

proposed. 

DATES: This final rule is effective on [INSERT DATE 30 DAYS AFTER THE DATE OF 

PUBLICATION IN THE FEDERAL REGISTER]. 

ADDRESSES: Please refer to Docket ID NRC-2013-0132 when contacting the NRC 

about the availability of information for this final rule. You may obtain publicly-available 

information related to this final rule by any of the following methods: 

• Federal rulemaking Web site: Go to http://www.regulations.gov and search 

for Docket ID NRC-2013-0132. Address questions about NRC dockets to Carol 

Gallagher; telephone: 301-287-3422; e-mail: Carol.Gallagher@nrc.gov. For technical 
questions contact the individual listed in the FOR FURTHER INFORMATION 

CONTACT section of this final rule. 

• NRC’s Agencywide Documents Access and Management System 

(ADAMS): You may obtain publicly available documents online in the ADAMS Public 

Documents collection at 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 e-mail to 

pdr.resource@nrc.gov. The ADAMS accession number for each document referenced 

(if it is available in ADAMS) is provided the first time that it is mentioned in the 

SUPPLEMENTARY INFORMATION section. 

• NRC’s PDR: You may examine and purchase copies of public documents at 

the NRC’s PDR, Room 01-F21, One White Flint North, 11555 Rockville Pike, Rockville, 

Maryland 20852. 

FOR FURTHER INFORMATION CONTACT: Esther Houseman, Office of the General 

Counsel, telephone: 301-415-2267, e-mail: Esther.Houseman@nrc.gov; or Eric Michel, 

Office of the General Counsel, telephone: 301-415-1177, e-mail: Eric.Michel2@nrc.gov, 

U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. 

SUPPLEMENTARY INFORMATION:

EXECUTIVE SUMMARY

The NRC is amending its regulations regarding the issuance of immediately effective 

orders to clarify the burden of proof in proceedings on challenges to the immediate 

effectiveness of such orders and the authority of the presiding officer in such proceedings to 
order live testimony. In NRC enforcement proceedings, the recipient of an order ordinarily may 

challenge the validity of that order before its terms become effective at a later specified date. 

However, in certain circumstances, the NRC may issue orders to regulated entities or 

individuals that are “immediately effective,” meaning the order’s terms are effective upon 

issuance and remain in effect even during the pendency of a challenge. These amendments 

confirm that the recipient of the immediately effective order has the burden to initiate a 

challenge regarding the order’s immediate effectiveness and present evidence that the order, 

including the need for immediate effectiveness, is not based on adequate evidence. The 

amendments also clarify that the NRC staff ultimately bears the burden of persuasion that 

immediate effectiveness is warranted. Additionally, these amendments confirm that the 

presiding officer in a challenge to the immediate effectiveness of an order may order live 

testimony, including cross examination of witnesses, if it will assist in the presiding officer’s 

decision. These are not substantive changes to the agency’s enforcement procedures, but 

rather confirm existing burdens and presiding officer authority. 

In this final rule, the Commission is not adopting the previously proposed amendment to 

the Deliberate Misconduct Rule that would have incorporated the concept of “deliberate 

ignorance” as an additional basis upon which the NRC could take enforcement action against 

an individual for violating the rule. The Commission agrees with public commenters’ concern 

that the subjectivity of the deliberate ignorance standard makes it difficult to implement. This 

difficulty would make the enforcement process more complex and burdensome, and any 

corresponding benefits would not outweigh these disadvantages. This decision is discussed in 

more detail in Section IV, “Public Comment Analysis,” of this document. 
TABLE OF CONTENTS: 

 I. Background. 

 II. Discussion. 

 III. Opportunities for Public Participation. 

 IV. Public Comment Analysis. 

 V. Section-by-Section Analysis. 

 VI. Regulatory Flexibility Certification. 

 VII. Regulatory Analysis. 

 VIII. Backfitting and Issue Finality. 

 IX. Cumulative Effects of Regulation. 

 X. Plain Writing. 

 XI. National Environmental Policy Act. 

 XII. Paperwork Reduction Act Statement. 

 XIII. Congressional Review Act. 

 XIV. Compatibility of Agreement State Regulations. 

 XV. Voluntary Consensus Standards. 

I. Background. 

 On January 4, 2006, the NRC issued an immediately effective order to Mr. David 

Geisen, a former employee at the Davis-Besse Nuclear Power Station, barring him from 

employment in the nuclear industry for 5 years.2

 The order charged Mr. Geisen with 

deliberate misconduct in contributing to the submission of information to the NRC that 

he knew was not complete or accurate in material respects. The U.S. Department of 

 

2 David Geisen, LBP-09-24, 70 NRC 676 (2009), aff’d, CLI-10-23, 72 NRC 210 (2010). 
Justice (DOJ) later obtained a grand jury indictment against Mr. Geisen on charges 

under 18 U.S.C. § 1001 for submitting false statements to the NRC.3

 In the criminal 

case, the judge gave the jury instructions under the prosecution’s two alternative 

theories: the jury could find Mr. Geisen guilty if he either knew that he was submitting 

false statements or if he acted with deliberate ignorance of their falsity. The jury found 

Mr. Geisen guilty on a general verdict; that is, the jury found Mr. Geisen guilty without 

specifying whether it found Mr. Geisen acted out of actual knowledge or deliberate 

ignorance. The United States Court of Appeals for the Sixth Circuit upheld Mr. Geisen’s 

conviction on appeal.4 

 In the parallel NRC enforcement proceeding, brought under the agency’s 

Deliberate Misconduct Rule, Mr. Geisen’s criminal conviction prompted the NRC’s 

Atomic Safety and Licensing Board (the Board) to consider whether Mr. Geisen was 

collaterally estopped5 from denying the same wrongdoing in the NRC proceeding.6 The 

Board found and the Commission upheld, on appeal, that collateral estoppel could not 

be applied because the NRC’s Deliberate Misconduct Rule did not include deliberate 

ignorance and the general verdict in the criminal proceeding did not specify whether the 

verdict was based on actual knowledge or deliberate ignorance.7 

 

3 United States v. Geisen, 612 F.3d 471, 485-86 (6th Cir. 2010), cert. denied, 131 S. Ct. 1813 (2011), 

(citing United States v. Geisen, 2008 WL 6124567 (N.D. Ohio May 2, 2008)). 

4 Id. at 485–86. 

5 Collateral estoppel precludes a defendant convicted in a criminal proceeding from challenging in a 

subsequent civil proceeding any facts that were necessary for the criminal conviction. Collateral estoppel 

applies to quasi-judicial proceedings such as enforcement hearings before the NRC. See, e.g., SEC v. 

Freeman, 290 F.Supp.2d 401, 405 (S.D.N.Y. 2003) (“It is settled that a party in a civil case may be 

precluded from relitigating issues adjudicated in a prior criminal proceeding and that the Government may 

rely on the collateral estoppel effect of the conviction in support of establishing the defendant’s liability in 

the subsequent civil action.”) (citations omitted). 

6 Geisen, LBP-09-24, 70 NRC at 709–26; see 10 CFR 50.5. 

7 The Board stated that “the [NRC] Staff flatly and unmistakably conceded that the ‘deliberate ignorance’ 

theory is not embraced within the ‘deliberate misconduct’ standard that governs our proceedings.” 

Geisen, LBP-09-24, 70 NRC at 715 (alteration added). In its decision, the Commission stated “[t]he 
 The lack of certainty as to the specific basis of the jury’s verdict was significant, 

because if the verdict was based on actual knowledge, the Board could have applied 

collateral estoppel based on the NRC’s identical actual knowledge standard and the 

same facts in the criminal case.8

 However, because the general verdict could have 

been based on deliberate ignorance, the Board could not apply collateral estoppel, 

because the NRC does not recognize conduct meeting the deliberate ignorance 

knowledge standard as deliberate misconduct. The Commission affirmed the Board’s 

decision.9

 This outcome shows that the Deliberate Misconduct Rule, as presently 

written, does not provide for an enforcement action on the basis of deliberate ignorance 

and the Board cannot apply collateral estoppel where a parallel DOJ criminal 

prosecution proceeding may be based on a finding of deliberate ignorance. 

 In the Staff Requirements Memorandum (SRM) to SECY-10-0074, “David 

Geisen, NRC Staff Petition for Review of LBP-09-24 (Aug. 28, 2009),” (dated 

September 3, 2010) (ADAMS Accession No. ML102460411), the Commission directed 

the NRC’s Office of the General Counsel (OGC) to conduct a review of three issues: 1) 

how parallel NRC enforcement actions and DOJ criminal prosecutions affect each other, 

2) the issuance of immediately effective enforcement orders in matters that DOJ is also 

pursuing, and 3) the degree of knowledge required for pursuing violations against 

individuals for deliberate misconduct. In 2011, OGC conducted the requested review 

and provided recommendations to the Commission for further consideration. In 

 

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). 

8 Geisen, CLI-10-23, 72 NRC at 249. 

9 Id. at 254. 
response, in 2012, the Commission directed OGC to develop a proposed rule that 

would incorporate the deliberate ignorance standard into the Deliberate Misconduct 

Rule. As part of this effort, the Commission directed OGC to examine the definitions of 

deliberate ignorance from all Federal circuit courts to aid in developing the most 

appropriate definition of this term for the NRC. The Commission also directed OGC to 

clarify two aspects of the regulations regarding challenges to immediate effectiveness of 

NRC orders as part of this rulemaking: (1) the burden of proof and (2) the authority of 

the presiding officer to order live testimony in resolving such a challenge. 

This final rule amends section 2.202 of Title 10 of the Code of Federal Regulations (10 

CFR), which governs challenges to, and the presiding officer’s review of, the immediate 

effectiveness of an order. Currently, the Commission may make orders immediately effective 

under 10 CFR 2.202(a)(5) if it finds that the public health, safety, or interest so requires or if 

willful conduct caused a violation of the Atomic Energy Act of 1954, as amended (AEA), an NRC 

regulation, license condition, or previously issued Commission order. This final rule amends the 

NRC’s regulations by clarifying the following: 1) which party bears the burden of proof in a 

hearing on a challenge to the immediate effectiveness of an order, and 2) the authority of the 

presiding officer to call for live testimony in a hearing on a challenge to the immediate 

effectiveness of an order. In developing these amendments to 10 CFR 2.202, the NRC 

reviewed the way in which the Board has interpreted the burden of proof in hearings on 

challenges to the immediate effectiveness of an order. The NRC also reviewed its current 

regulations and practices regarding the authority of the presiding officer to call for live testimony 

in hearings on challenges to the immediate effectiveness of an order. 

 This final rule also makes conforming amendments to 10 CFR 150.2 by adding a cross 

reference to 10 CFR 61.9b and replacing the cross reference to 10 CFR 71.11 with a cross 

reference to 10 CFR 71.8. These conforming amendments are necessary because when the 
NRC first promulgated the Deliberate Misconduct Rule in 1991, it failed to list 10 CFR 61.9b as 

a cross reference in 10 CFR 150.2; and, although the NRC listed 10 CFR 71.11, which at the 

time was the 10 CFR Part 70 Deliberate Misconduct Rule, as a cross reference in section 150.2 

the NRC later redesignated the provision as 10 CFR 71.8 and failed to make a conforming 

amendment to update section 150.2. 

As discussed further in the following sections, the Commission is not adopting in this 

final rule the previously proposed amendment to the Deliberate Misconduct Rule to incorporate 

the concept of deliberate ignorance as an additional basis upon which the NRC can take 

enforcement action against an individual for violating the rule. 

Immediately Effective Orders

 The NRC’s procedures to initiate formal enforcement action are found in Subpart 

B of 10 CFR Part 2. These regulations include 10 CFR 2.202, “Orders.” An order is a 

written NRC directive to modify, suspend, or revoke a license; to cease and desist from 

a given practice or activity; or to take another action as appropriate.10 The 

Commission’s statutory authority to issue an order is Section 161 of the AEA.11 The 

Commission may issue orders in lieu of or in addition to civil penalties.12 When the 

Commission determines that the conduct that caused a violation was willful or that the 

public health, safety, or interest requires immediate action, the Commission may make 

orders immediately effective, meaning the subject of the order does not have an 

opportunity for a hearing before the order goes into effect.13 Making enforcement 

orders immediately effective has been an integral part of 10 CFR 2.202 since 1962, and 

Section 9(b) of the Administrative Procedure Act (APA), 5 U.S.C. 558(c), expressly 

 

10 10 CFR 2.202(a). 

11 42 U.S.C. 2201. 

12 Section 2.3.5 of the NRC Enforcement Policy (2013) (ADAMS Accession No. ML13228A199). 

13 10 CFR 2.202(b). 
authorizes immediately effective orders. 

 On the same day that the Commission published the 1990 proposed Deliberate 

Misconduct Rule, “Willful Misconduct by Unlicensed Persons,”14 it also published a 

related proposed rule, “Revisions to Procedures to Issue Orders,”15 that would expressly 

allow the Commission to issue orders to unlicensed persons. The Commission may 

issue these orders “when such persons have demonstrated that future control over their 

activities subject to the NRC’s jurisdiction is deemed to be necessary or desirable to 

protect public health and safety or to minimize danger to life or property or to protect the 

common defense and security.”16 This proposed rule concerned amendments to 10 

CFR 2.202 and other 10 CFR Part 2 provisions.17 At the time of these proposed rules, 

the Commission’s regulations only authorized the issuance of an order to a licensee. 

Therefore, the intent of the 1990 proposed Deliberate Misconduct Rule and its 

companion proposed rule was to establish a mechanism to issue “an order...to an 

unlicensed person who willfully causes a licensee to be in violation of Commission 

requirements or whose willful misconduct undermines, or calls into question, the 

adequate protection of the public health and safety in connection with activities 

regulated by the NRC under the [AEA].”18 These proposed changes were adopted, with 

some modifications, in the 1991 final Deliberate Misconduct Rule.19 Specifically, the 

1991 final Deliberate Misconduct Rule amended 10 CFR 2.202 and other provisions of 

10 CFR Part 2 (10 CFR 2.1, 2.201, 2.204, 2.700, and Appendix C), to authorized the 

 

14 55 FR 12374; April 3, 1990. 

15 55 FR 12370; April 3, 1990. 

16 Id. at 12371. 

17 Id. at 12373-74. 

18 Id. at 12372. 

19 56 FR 40664; August 15, 1991. 
issuance of an order to unlicensed persons otherwise subject to the NRC’s jurisdiction. 

 On July 5, 1990, the Commission published another proposed rule that would 

make additional changes to 10 CFR 2.202.20 These additional changes pertained to 

immediately effective orders. Primarily, the July 5, 1990 proposed rule would have 

required that challenges to immediately effective orders be heard expeditiously. The 

statement of considerations for the July 5, 1990 proposed rule noted that “the 

Commission believes that a proper balance between the private and governmental 

interests involved is achieved by a hearing conducted on an accelerated basis.”21 The 

statement of considerations also stated that a “motion to set aside immediate 

effectiveness must be based on one or both of the following grounds: The willful 

misconduct charged is unfounded or the public health, safety or interest does not 

require the order to be made immediately effective.”22 

 In addition, the July 5, 1990 proposed rule provided the following statement 

regarding the respective burdens of a party filing a motion to challenge the immediate 

effectiveness of an immediately effective order and of the NRC staff: 

The burden of going forward on the immediate effectiveness 

issue is with the party who moves to set aside the immediate 

effectiveness provision. The burden of persuasion on the 

appropriateness of immediate effectiveness is on the NRC 

staff.23 

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

published a final rule on May 12, 1992.24 The Commission acknowledged in the May 

12, 1992 final rule that “an immediately effective order may cause a person to suffer 

 

20 55 FR 27645. 

21 Id. 

22 Id. 

23 Id. at 27646. 

24 57 FR 20194. 
loss of employment while the order is being adjudicated” but recognized that the effects 

of health and safety violations are paramount over an individual’s right of employment.25 

Accordingly, the final rule amended section 2.202(c) “to allow early challenges to the 

immediate effectiveness aspect of immediately effective orders.”26 The final rule also 

provided for an expedited hearing on both the merits of the immediately effective order 

and a challenge to set aside immediate effectiveness. The presiding officer in an 

immediate effectiveness challenge must dispose of a person’s motion to set aside the 

immediate effectiveness of the order “expeditiously,” generally within 15 days.27 

Therefore, the Commission struck a balance between the governmental interests in 

protecting public health and safety and an interest in fairness by requiring that 

challenges to immediately effective orders be heard expeditiously. 

 

Burden of Going Forward and Burden of Persuasion 

 In opposing the immediate effectiveness aspect of an order, the party subject to 

the order, or respondent, must initiate the proceeding by filing affidavits and other 

evidence that state that the order and the NRC staff’s determination that it is necessary 

to make the order immediately effective “is not based on adequate evidence but on 

mere suspicion, unfounded allegations, or error.”28 The respondent’s obligation to 

challenge the order is known as the “burden of going forward.”29 Section 2.202, 

however, has been interpreted to mean that the NRC staff bears the “burden of 

persuasion” to demonstrate that the order itself, and the immediate effectiveness 

 

25 Id. at 20195. 

26 Id. at 20194. 

27 Id. at 20196. See also 10 CFR 2.202(c)(2)(i). 

28 10 CFR 2.202(c)(2)(i). 

29 United Evaluation Servs, Inc., LBP-02-13, 55 NRC 351, 354 (2002). 
determination, are supported by “adequate evidence.”30 In a 2005 proceeding, the 

Board described what the NRC staff must prove, stating, 

[T]he staff must satisfy a two-part test: it must demonstrate 

that adequate evidence — i.e., reliable, probative, and 

substantial (but not preponderant) evidence—supports a 

conclusion that (1) the licensee violated a Commission 

requirement (10 C.F.R. § 2.202(a)(1)), and (2) the violation 

was ‘willful,’ or the violation poses a risk to ‘the public health, 

safety, or interest’ that requires immediate action (id. § 

2.202(a)(5)).31 

Although Mr. Geisen never challenged the immediate effectiveness of the Commission’s 

order, one of the Board’s judges raised the concern that 10 CFR 2.202(c)(2)(i) could be 

interpreted to place the burden of persuasion on the party subject to the order to show 

that the order is based on mere suspicion, unfounded allegations, or error.32 This final 

rule clarifies that the burden of persuasion is the obligation of the NRC staff, not the 

party subject to the order. 

Authority of the Presiding Officer to Order Live Testimony

 The July 5, 1990 proposed rule’s statement of considerations contemplated the 

possibility of an evidentiary hearing as part of a challenge to immediate effectiveness: 

It is expected that the presiding officer normally will decide the question of 

immediate effectiveness solely on the basis of the order and other filings 

on the record. The presiding officer may call for oral argument. However, 

 

30 Id. 

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

original). 

32 Geisen, “Additional Views of Judge Farrar,” LBP-09-24, 70 NRC at 801 n.12 (“To succeed under the 

terms of [10 CFR 2.202(c)(2)(i)], the challenge brought by the Order's target must show that ‘the order, 

including the need for immediate effectiveness, is not based on adequate evidence but on mere 

suspicion, unfounded allegations, or error.’ In addition to having the burden on immediate effectiveness, 

the target is apparently expected to address the merits at that point as well, as is indicated by the next 

sentence, which requires the challenge to ‘state with particularity the reasons why the order is not based 

on adequate evidence’ and to ‘be accompanied by affidavits or other evidence relied on.’ 10 C.F.R. 

§ 2.202(c)(2)(i). All in 20 days, unless extended. Id. § 2.202(a)(2).”) (emphasis in the original). 
an evidentiary hearing is to be held only if the presiding officer finds the 

record is inadequate to reach a proper decision on immediate 

effectiveness. Such a situation is expected to occur only rarely.33 

The May 12, 1992 final rule, however, simply stated that “[t]he presiding officer may call 

for oral argument but is not required to do so.”34 Section 2.319 outlines the presiding 

officer’s authority to “conduct a fair and impartial hearing according to law, and to take 

appropriate action to control the prehearing and hearing process, to avoid delay and 

maintain order,” including the power to examine witnesses, but this power is not 

specified in 10 CFR 2.202. This final rule clarifies the presiding officer’s authority to 

order live testimony on challenges to the immediate effectiveness of orders. 

II. Discussion. 

Immediately Effective Orders 

 This rule amends 10 CFR 2.202(c)(2) to clarify that in any challenge to the 

immediate effectiveness of an order, the NRC staff bears the burden of persuasion and 

the party challenging the order bears the burden of going forward.35 Specifically, the 

rule states that the NRC staff must show that 1) adequate evidence supports the 

grounds for the order and 2) immediate effectiveness is warranted.36 

 This rule further amends 10 CFR 2.202(c)(2) to confirm the presiding officer’s 

authority to order live testimony, including cross examination of witnesses, in hearings 

on challenges to the immediate effectiveness of orders if the presiding officer concludes 

 

33 55 FR 27645–46. 

34 57 FR at 20196. 

35 The party challenging the order has the obligation to initiate the proceeding, namely, by filing the 

appropriate motion under 10 CFR 2.202(c)(2)(i). This motion “must state with particularity the reasons 

why the order is not based on adequate evidence and must be accompanied by affidavits or other 

evidence relied on.” 10 CFR 2.202(c)(2)(i). 

36 The Administrative Procedure Act provides “[e]xcept as otherwise provided by statute, the proponent 

of a rule or order has the burden of proof.” 5 U.S.C. § 556(d). 
that taking live testimony would assist in its decision on the motion. Similarly, the rule 

allows any party to the proceeding to file a motion requesting the presiding officer to 

order live testimony. The amendments allow the NRC staff, in cases where the 

presiding officer orders live testimony, the option of presenting its response through live 

testimony rather than a written response made within 5 days of its receipt of the motion. 

The NRC does not anticipate that permitting the presiding officer to allow live testimony 

would cause delay, and even if it were to cause delay, public health and safety would 

not be affected because the immediately effective order would remain in effect 

throughout the hearing on immediate effectiveness. 

 The rule also amends 10 CFR 2.202(c)(2) to clarify that the presiding officer shall 

conduct any live testimony pursuant to its powers in 10 CFR 2.319, except that no 

subpoenas, discovery, or referred rulings or certified questions to the Commission shall 

be permitted for this purpose. Finally, the rule amends 10 CFR 2.202(c)(2) by dividing 

the paragraph into smaller paragraphs, adding a cross reference to 10 CFR 2.202(a)(5) 

(the regulation that authorizes the Commission to make an order immediately effective), 

and making other minor edits to improve clarity and readability. 

Conforming Amendments 

 Section 150.2, “Scope,” provides notice to Agreement State licensees conducting 

activities under reciprocity in areas of NRC jurisdiction that they are subject to the 

applicable NRC Deliberate Misconduct Rule provisions. When the NRC first 

promulgated the Deliberate Misconduct Rule in 1991, it failed to list 10 CFR 61.9b as a 

cross reference in 10 CFR 150.2. At the time, 10 CFR 150.2 listed 10 CFR 30.10, 

40.10, and 70.10 as the Deliberate Misconduct Rule provisions applicable to Agreement 
State licensees conducting activities under reciprocity in areas of NRC jurisdiction. 

 On January 13, 1998, the NRC revised its regulations to extend the Deliberate 

Misconduct Rule to include applicants for or holders of certificates of compliance issued 

under 10 CFR Part 71, “Packaging and Transportation of Radioactive Material.”37 This 

rule designated the 10 CFR Part 71 Deliberate Misconduct Rule provision as 10 CFR 

71.11.38 The NRC made a conforming amendment to 10 CFR 150.2 by listing 10 CFR 

71.11 as a cross reference.39 The NRC later redesignated the provision as 10 CFR 

71.840 but did not make a conforming amendment to update the cross reference in 10 

CFR 150.2. The current 10 CFR 150.2 rule text still lists the 10 CFR Part 71 Deliberate 

Misconduct Rule provision as 10 CFR 71.11. 

 This rule makes conforming amendments to 10 CFR 150.2 by adding a cross 

reference to 10 CFR 61.9b and deleting the cross reference to 10 CFR 71.11 and 

replacing it with a cross reference to 10 CFR 71.8. 

III. Opportunities for Public Participation. 

The proposed rule was published on February 11, 2014, for a 90-day public comment 

period that ended on May 12, 2014.41 

IV. Public Comment Analysis. 

The NRC received comments from six commenters: the Nuclear Energy Institute, 

Inc. (NEI), the National Association of Criminal Defense Lawyers (NACDL), STARS 

 

37 63 FR 1890. 

38 Id. at 1899. 

39 Id. at 1901. 

40 In a 2004 rulemaking amending its regulations concerning the packaging and transport of radioactive 

materials, the NRC renumbered 10 CFR 71.11 to 10 CFR 71.8 (69 FR 3698, 3764, 3790; January 26, 

2004). 

41 79 FR 8097. 
Alliance LLC (STARS), Hogan Lovells LLP (Hogan Lovells), Troutman Sanders LLP 

(Troutman Sanders), and an individual, Mr. James Lieberman. All six provided 

comments on the proposed amendment to the Deliberate Misconduct Rule 

incorporating the concept of deliberate ignorance. One commenter, Mr. Lieberman, 

supported the amendment. The other five commenters opposed the amendment. All 

comments are summarized below, by topic. Additionally, two commenters (NEI and 

STARS) provided comments on the proposed amendments to 10 CFR 2.202(c) 

concerning the immediate effectiveness of orders. The NRC received no comments on 

the proposed amendments to 10 CFR 150.2. 

Comments Concerning Deliberate Ignorance

Comment 1: Confusion and practical difficulties associated with distinguishing between 

deliberate ignorance and carelessness, recklessness, or negligence 

NEI, NACDL, STARS, Hogan Lovells, and Troutman Sanders commented that 

deliberate ignorance is an inherently vague and highly subjective criminal knowledge 

standard and that distinguishing deliberate ignorance from other, non-deliberate states 

of mind, such as carelessness, recklessness, or negligence, would be difficult in 

practice. These commenters expressed concern that adoption of the deliberate 

ignorance standard into the NRC’s regulations may confuse NRC staff and could 

possibly result in enforcement action against individuals who do not commit deliberate 

violations. 

Specifically, Hogan Lovells expressed concern that NRC staff would have 

difficulty assessing what an individual “subjectively believed” and whether the individual 

deliberately took action to “avoid learning” a material fact. NEI commented that the 
“complex, legalistic deliberate ignorance standard would be difficult to apply and would 

promote unnecessary and wasteful litigation without a counterbalancing benefit to the 

public.” NACDL expressed concern that the “theoretical distinction between a person 

who is deliberately ignorant and one who is reckless or negligent” would be “almost 

impossible to maintain” in the NRC enforcement setting. As additional support for these 

concerns, NEI, STARS, and Hogan Lovells stated that legal scholars and courts, 

including the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit), 

have cautioned that a “deliberate ignorance” jury instruction in Federal criminal trials 

should only be used sparingly because of the heightened risk that defendants may be 

inadvertently or impermissibly convicted on a lesser basis than deliberate ignorance, 

such as recklessness or negligence. NACDL, NEI, and Troutman Sanders also argued 

that in the majority of cases evidence used to support a finding of deliberate ignorance 

would also serve as circumstantial evidence of actual knowledge, thereby further 

diminishing the utility of the proposed rule. 

One commenter, Mr. Lieberman, expressed support for the incorporation of the 

deliberate ignorance standard because the text of the rule “clearly” distinguished 

deliberate ignorance from persons who act with recklessness or careless indifference. 

Mr. Lieberman recommended that the Commission provide several hypothetical 

examples of how and under what circumstances the deliberate ignorance standard 

might be applied in the future to more clearly explain how the NRC staff would 

differentiate between deliberate ignorance and careless disregard in practice. 

NRC Response: The Commission agrees with the comments expressing concern 

that the difficulties in implementing the deliberate ignorance standard would likely 
outweigh its corresponding benefits. The text of the proposed rule contains multiple 

subjective elements that would require NRC staff to assess and demonstrate the 

subjective belief for an individual’s actions or inactions. The Commission believes the 

text of the proposed rule correctly defines “deliberate ignorance” in such a way as to 

distinguish it from careless disregard or other, non-deliberate standards.42 However, 

after further consideration of the difficulties in assessing the facts of a case against this 

separate intent standard, the Commission has decided not to adopt its proposed 

amendment to incorporate a deliberate ignorance standard into the Deliberate 

Misconduct Rule. In this regard, the NRC staff already assesses cases against two 

intent standards cognizable in our enforcement process—deliberateness involving 

actual knowledge, and all other forms of willfulness, including careless disregard. 

Careless disregard is different only in degree from the new standard of deliberate 

ignorance and could frustrate the efficiency of the enforcement process, at least initially, 

until guidance were issued and enforcement experience established. The Commission 

also anticipates that, in most NRC enforcement cases, evidence supporting deliberate 

ignorance would also serve as circumstantial evidence supporting actual knowledge, 

further diminishing the utility of the proposed rule at this time.43 Multiple Federal circuits 

have characterized deliberate ignorance jury instructions as means to properly inform 

juries that a “charade of ignorance” can serve as circumstantial proof of guilty 

 

42 The proposed rule text mirrored the definition provided by the United States Supreme Court in GlobalTech Appliances, Inc. v. SEB S.A.,131 S. Ct. 2060 (2011). 

43 See, e.g., United States v. Arbizo, 833 F.2d 244, 247, 248–49 (10th Cir. 1987) (“One can in fact not 

know many detailed facts but still have enough knowledge to demonstrate consciousness of guilty 

conduct sufficient to satisfy the ‘knowing’ element of the crime ... Arbizo’s case presents evidence 

supporting both actual knowledge and deliberate avoidance of knowledge of some details of the 

transaction, either of which justify the [guilty] verdict... .”). 
knowledge.44 Therefore, the benefits associated with the deliberate ignorance standard 

would likely not outweigh the practical difficulties of its implementation, particularly given 

that the Commission expects that cases where evidence supports a deliberate 

ignorance finding but not actual knowledge will be rare. 

The Commission acknowledges Mr. Lieberman’s support for the rule and, as 

previously stated, agrees that the text of the proposed rule accurately distinguishes 

deliberate ignorance from non-deliberate standards, including recklessness, negligence, 

and carelessness. However, for the reasons previously stated, the Commission is not 

adopting in this final rule the proposed amendment to the Deliberate Misconduct Rule. 

Comment 2: Lack of a compelling justification 

NEI, NACDL, STARS, Hogan Lovells, and Troutman Sanders all commented that 

the proposed rule failed to provide a compelling justification for incorporating the 

deliberate ignorance standard into the Deliberate Misconduct Rule. Several of these 

commenters stated that the only justification that the NRC provided for expanding the 

scope of the rule was the NRC staff’s inability to invoke collateral estoppel in the Geisen

case. These commenters stated that expanding the Deliberate Misconduct Rule cannot 

be justified by a single case in the Deliberate Misconduct Rule’s 25-year history and that 

to fashion a rule to fit a single case is both unnecessary and bad policy. NEI 

commented that the Commission should not view the Geisen proceedings as illustrative 

of an additional or unfair “burden” that the NRC staff must overcome in deliberate 

misconduct enforcement cases. Instead, the case simply illustrated the NRC staff’s 

responsibility in carrying its burden when issuing an enforcement order and that the 

 

44 See, e.g., U.S. v. Conner, 537 F.3d 480, 486 (5th Cir. 2008); U.S. v. Delreal-Ordones, 213 F.3d 1263, 

1269 (10th Cir. 2000). 
NRC should not be able to dispense with this responsibility by amending the Deliberate 

Misconduct Rule. 

 NEI and Hogan Lovells also argued that the statement in the proposed 

rule that “deficiencies in the Deliberate Misconduct Rule became apparent” in the 

Geisen case was incorrect because the Geisen case was not a deliberate ignorance 

case. Rather, the NRC’s order only alleged that Mr. Geisen had actual knowledge of 

the falsity of the statements that he submitted to the NRC, and that the Atomic Safety 

and Licensing Board agreed that the case was only an actual knowledge case. 

Therefore, according to the commenters, the NRC should not use the Geisen case as a 

basis for the rule. The commenters noted that, when promulgating the original 

Deliberate Misconduct Rule in 1991, the Commission stated that the range of actions 

subject to the rule was not expected to “differ significantly” from those that might subject 

an individual to criminal prosecution, and the commenters noted that one case in nearly 

25 years does not rise to the level of a “significant” difference. 

 NRC Response: The Commission disagrees with this comment. Although 

the Commission recognizes that the benefits of the rule would be limited because it will 

likely prove decisive in few cases, the Commission disagrees with the comment that the 

agency lacked adequate justification to consider modification of the regulations to 

address deliberate ignorance. When promulgating the Deliberate Misconduct Rule in 

1991, the Commission stated that deliberate misconduct is a significant and serious 

matter that poses a distinct threat to public health and safety.45 The NRC’s inability to 

invoke collateral estoppel in the Geisen proceeding was not the sole justification for 

proposing to amend the Deliberate Misconduct Rule. Rather, the Commission has 

 

45 56 FR 40664, 40674; August 15, 1991. 
always considered willful violations of NRC requirements to be of particular concern 

because the NRC’s regulatory program is dependent on licensees and their contractors, 

employees, and agents to act with integrity and communicate with candor. Therefore, 

the outcome of the Geisen proceeding prompted the Commission to reevaluate the 

Deliberate Misconduct Rule. 

 The Commission also disagrees with the comment that the Geisen case 

was not a deliberate ignorance case. While the NRC staff did allege only actual 

knowledge throughout the enforcement proceeding, the NRC staff did not pursue a 

deliberate ignorance theory because it conceded deliberate ignorance was not a basis 

upon which it could pursue enforcement action under the Deliberate Misconduct Rule as 

currently written.46 Conversely, DOJ’s parallel criminal prosecution of Mr. Geisen in 

Federal court was based on alternate theories of actual knowledge or deliberate 

ignorance. The district court provided the deliberate ignorance jury instruction, and Mr. 

Geisen was convicted on a general verdict. On appeal to the U.S. Court of Appeals for 

the Sixth Circuit (Sixth Circuit), Mr. Geisen challenged the district court’s decision to 

provide the deliberate ignorance jury instruction.47 The Sixth Circuit reiterated that “a 

deliberate ignorance instruction is warranted to prevent a criminal defendant from 

escaping conviction merely by deliberately closing his eyes to the obvious risk that he is 

engaging in unlawful conduct,” but cautioned that this instruction should be used 

sparingly because of the heightened risk of conviction based on mere negligence, 

carelessness, or ignorance.48 Under this standard, the court found the instruction to be 

proper because the district court’s instruction was a correct statement of the law and 

 

46 See David Geisen, LBP-09-24, 70 NRC 676, 715 (2009); Geisen, CLI-10-23, 72 NRC 210, 251 (2010). 

47 United States v. Geisen, 612 F.3d 471, 485 (6th Cir. 2010). 

48 Id. at 485–86 (citations and internal quotation marks omitted). 
included a limiting instruction—that “carelessness, or negligence, or foolishness on [the 

defendant’s] part is not the same as knowledge and is not enough to convict” foreclosed 

the possibility that the jury could erroneously convict Geisen on the basis of negligence 

or carelessness.49 Moreover, the court found that the evidence supported a conviction 

based on either actual knowledge or deliberate ignorance.50 Had the deliberate 

ignorance standard been incorporated into the NRC’s Deliberate Misconduct Rule, 

collateral estoppel would have been available to the NRC staff in the Geisen matter. 

 As previously stated, the Commission is not adopting the proposed 

amendment to the Deliberate Misconduct Rule because the practical difficulties are 

expected to outweigh the potential benefits gained from the rule. 

Comment 3: Previous rejection of the deliberate ignorance standard 

NEI stated that the proposed rule would conflict with the Commission’s decision 

in the 1991 Deliberate Misconduct Rule to exclude from the rule violations based on 

careless disregard and negligence. Hogan Lovells stated that the Commission rejected 

the deliberate ignorance standard when it promulgated the original Deliberate 

Misconduct Rule. 

 NRC Response: The Commission disagrees with the comment. Although 

the Commission is not adopting the proposed amendment to the Deliberate Misconduct 

Rule due to the practical difficulties associated with applying the deliberate ignorance 

standard, the Commission disagrees with comments suggesting that the deliberate 

ignorance standard was previously analyzed and explicitly rejected when the 

Commission promulgated the original Deliberate Misconduct Rule in 1991. The 

 

49 Id. 

50 Id. at 487. 
commenter points to a single sentence in the statement of considerations for the 

proposed rule that discussed “careless disregard,” which uses the phrase “a situation in 

which an individual blinds himself or herself to the realities of whether a violation has 

occurred or will occur.”51 The proposed rule and final rule did not make any other 

reference related to willful blindness or deliberate ignorance and did not contain detailed 

discussion on the standards. 

 The Commission eventually eliminated “careless disregard” from the final rule in 

response to public comments, which Hogan Lovells characterizes as the Commission’s 

“considered and intentional decision” to exclude deliberate ignorance from the rule. 

However, the Commission disagrees that this limited discussion amounts to an express 

rejection of the deliberate ignorance standard. In the 1991 final rule, the Commission 

did not focus on the applicability of collateral estoppel in a parallel criminal action, which 

was one of the justifications for the proposed rule. Further, rejection of a proposal 

under previous rulemaking would not prevent future Commissions from reconsidering 

the matter and reaching a different conclusion. As previously stated, the NRC is not 

adopting the proposed amendment to the Deliberate Misconduct Rule over concerns 

that practical difficulties with its implementation are expected to outweigh the potential 

benefits. 

Comment 4: Unsettled judicial precedent

NEI, Hogan Lovells, and STARS stated that the proposed rule is premature 

because of unsettled judicial precedent. NEI and Hogan Lovells cited as support the 

D.C. Circuit’s statements in United States v. Alston-Graves about the use of the 

 

51 55 FR 12375; April 3, 1990. 
deliberate ignorance standard.52 NEI also stated that the D.C. Circuit’s opinion should 

carry substantial weight in deciding whether to adopt the deliberate ignorance standard 

because the D.C. Circuit is the only Federal circuit court that always has jurisdiction and 

venue to consider challenges to NRC enforcement orders. 

Additionally, NEI and Hogan Lovells stated that the Supreme Court case GlobalTech Appliances, Inc. v. SEB, S.A., is not directly applicable because it was a patent 

case, not a criminal case. Therefore, as Justice Kennedy noted in his dissent in the 

case, the Court was not briefed on whether to endorse the deliberate ignorance 

standard for all criminal cases requiring the government to prove knowledge.53 NEI and 

Hogan Lovells also noted that Federal courts most commonly apply the deliberate 

ignorance standard in drug cases. 

 NRC Response: The Commission disagrees with the comment. Although 

the Commission is not adopting the proposed amendment to the Deliberate Misconduct 

Rule due to the practical difficulties associated with applying the deliberate ignorance 

standard, the Commission disagrees that judicial precedent in this area is unsettled 

such that the Commission’s proposal to adopt the deliberate ignorance standard is 

premature. In the words of the Supreme Court, the doctrine of willful blindness is “well 

established” in the Federal courts.54 The history of the deliberate ignorance standard is 

quite long—the concept has been endorsed and applied in criminal cases for more than 

100 years. The Supreme Court endorsed a similar concept in 1899 in Spurr v. United 

States.

55 In 1976, the Ninth Circuit in United States v. Jewell crafted the modern 

 

52 435 F.3d 331 (D.C. Cir. 2006). 

53 Global-Tech Appliances, Inc. v. SEB, S.A., 131 S. Ct. 2060, 2073 (2011) (Kennedy, J., dissenting). 

54 Id. at 2068-69 (majority opinion). 

55 See id. at 2069. 
formulation of the deliberate ignorance standard that Federal courts have since adopted 

and applied.56 The concept of deliberate ignorance is now widely accepted in the 

Federal courts, which commonly give and uphold deliberate ignorance jury 

instructions.57 

 In Alston-Graves, the D.C. Circuit ruled on the appropriateness of a 

deliberate ignorance instruction and found that the lower court committed harmless 

error giving the instruction—not because the instruction itself is improper but because in 

this particular case the prosecution failed to present sufficient evidence to support it.58 

At no point in Alston-Graves did the D.C. Circuit reject the deliberate ignorance 

standard. Indeed, the court acknowledged that it had previously supported the concept 

of deliberate ignorance in dicta in a prior case.59 

 The Commission disagrees with the comment that it should give the D.C. 

Circuit’s opinion in Alston-Graves more weight relative to other Federal circuits. The 

Hobbs Act, which NEI cited as providing the D.C. Circuit with jurisdiction and venue 

over all challenges to NRC enforcement orders, also states that jurisdiction and venue 

is proper in any court of appeals in which the petitioner resides or has its principal 

office.60 Non-licensed individuals challenging enforcement actions could file such 

challenges where they reside. Therefore, the Commission believes that it would be 

unwise to give additional weight to the D.C. Circuit’s decision not to fully embrace the 

deliberate ignorance standard and relatively less weight to every other Federal circuit, 

 

56 532 F.2d 697 (9th Cir. 1976). See also, e.g., United States v. Caminos, 770 F.2d 361, 365 (3d Cir. 

1985) (“The charge, known as a ‘deliberate ignorance’ charge, originated in United States v. Jewell.”). 

57 Global-Tech, 131 S. Ct. at 2069; Alston-Graves, 435 F.3d at 338. 

58 Alston-Graves, 435 F.3d at 341–42. 

59 Id. at 340 (citing United States v. Mellen, 393 F.3d 175, 181 (D.C. Cir. 2004)). 

60 28 U.S.C. §§ 2342(4), 2343. 
which have each more fully embraced the deliberate ignorance standard.61 

 Additionally, the Commission disagrees with the comment that the 

Supreme Court’s Global-Tech decision is inapplicable. The Court acknowledged that it 

was not briefed on the question of whether to endorse the deliberate ignorance 

standard for all criminal cases requiring the government to prove knowledge. In 

rebutting Justice Kennedy’s dissent, the Court stated that it could think of no reason to 

“protect ... parties who actively encourage others to violate patent rights and who take 

deliberate steps to remain ignorant of those rights despite a high probability that the 

rights exist and are being infringed.”62 The majority’s rationale applies with equal force 

to nuclear regulation. Moreover, although Global-Tech is a civil case, it relied on 

criminal cases to distill a definition of deliberate ignorance and several courts of appeals 

have referenced or applied Global-Tech in criminal jury instructions and criminal 

sentencing.63 Additionally, Federal circuits have approved application of the deliberate 

ignorance standard in a variety of criminal and civil cases.64 

 

61 The First, Third, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuit Courts of Appeals 

have incorporated willful blindness or deliberate ignorance into their pattern or model jury instructions. 

Pattern or model jury instructions are plain language formulations of case law that judges may provide to 

juries as legal explanations. These jury instructions are given legal weight through their use in trials and 

subsequent approval of that use on appeal. The Second Circuit, see, e.g., United States v. Coplan, 703 

F.3d 46 (2d Cir. 2012), and Fourth Circuit, see, e.g., United States v. Poole, 640 F.3d 114 (4th Cir. 2011), 

have applied deliberate ignorance or willful blindness in case law. 

62 Global-Tech Appliances, Inc. v. SEB, S.A., 131 S. Ct. 2060, 2069 n.8 (2011). 

63 See, e.g., United States v. Goffer, 721 F.3d 113, 127-28 (2d Cir. 2013); United States v. Brooks, 681 

F.3d 678, 702 n.19 (5th Cir. 2012); United States v. Butler, 646 F.3d 1038, 1041 (8th Cir. 2011). 

64 See, e.g., United States v. Goffer, 721 F.3d 113, (2d Cir. 2013) (upholding a deliberate ignorance jury 

instruction in a case involving charges of conspiracy to commit securities fraud and securities fraud); 

United States v. Yi, 704 F.3d 800 (9th Cir. 2013) (upholding a deliberate ignorance jury instruction in a 

case involving a charge of conspiracy to violate the Clean Air Act); United States v. Brooks, 681 F.3d 678 

(5th Cir. 2012) (affirming provision of the deliberate ignorance jury instruction in a case involving charges 

of false reporting of natural gas trades in violation of the Commodity Exchange Act and the federal wire 

fraud statute); United States v. Jinwright, 683 F.3d 471 (4th Cir. 2012) (finding the provision of the 

deliberate ignorance instruction was not an abuse of discretion in a case involving charges of a 

conspiracy to defraud and tax evasion); Tommy Hilfiger Licensing, Inc. v. Goody’s Family Clothing, Inc., 

2003 WL 22331254 (N.D. Ga. 2003) (applying a deliberate ignorance standard to a Section 1117 

trademark infringement claim). 
As previously stated, the NRC is not adopting the proposed amendment to the 

Deliberate Misconduct Rule because the practical difficulties with its implementation 

would likely outweigh the potential benefits. 

Comment 5: Lack of guidance 

NEI and STARS stated that the NRC failed to issue draft guidance with the 

proposed rule and should not make the final rule effective until after the NRC publishes 

draft guidance for public comment and then finalizes that guidance. NEI stated that 

NRC policy requires that the agency issue draft guidance in parallel with proposed 

rules, citing the SRM to SECY-11-0032, “Consideration of the Cumulative Effects of 

Regulation in the Rulemaking Process” (dated October 11, 2011) (ADAMS Accession 

No. ML112840466). NEI further stated that the final rule should require the Director of 

the Office of Enforcement to formally certify to the Commission that he or she has 

reviewed the staff’s application of deliberate ignorance before issuing any violation 

relying on the standard. NEI also suggested that the NRC provide examples of 

circumstances that are categorically excluded (i.e. safe harbors) from enforcement on 

the basis of deliberate ignorance. 

Mr. Lieberman expressed support for the proposed rule but also suggested that 

the NRC provide hypothetical examples of conduct that does and does not satisfy the 

deliberate ignorance standard in the statement of considerations for the final rule. 

 NRC Response: The Commission is in general agreement that, if adopted, 

the rule would benefit from the development of implementing guidance. However, as 

stated previously, the Commission has decided not to adopt the proposed amendments 

to the Deliberate Misconduct Rule. Therefore, there is no need for draft guidance as 
requested by the commenters. 

Comment 6: Proposed Rule would discourage participation in licensed activities and is 

not necessary to deter deliberate misconduct 

NEI commented that the proposed rule would discourage participation in licensed 

activities and nuclear employment and noted that the Commission acknowledged this 

concern in the 1991 Deliberate Misconduct Rule.

 NEI commented that the proposed rule is not necessary for deterrent 

effect because the risk of criminal prosecution is a sufficient deterrent. The commenter 

also stated that, rather than expanding the Deliberate Misconduct Rule to encompass 

more individual behavior, the NRC still has the option in situations where an individual 

engages in improper conduct beyond the reach of the current Deliberate Misconduct 

Rule to issue sanctions to the company to address the NRC’s concerns. 

NRC Response: The Commission acknowledges the commenter’s concern with 

respect to participation and employment in the nuclear field and notes that commenters 

raised and the Commission responded to a similar concern with respect to the 1991 

Deliberate Misconduct Rule.65 The Commission also acknowledges that the agency 

continues to have the ability to take enforcement action against a licensee for an 

individual’s conduct that results in a violation of NRC requirements but does not amount 

to deliberate misconduct. However, as stated previously, the Commission has decided 

not to adopt the proposed changes to the Deliberate Misconduct Rule because practical 

difficulties outweigh the potential benefits. Therefore the Commission did not reach this 

issue. 

 

65 56 FR 40675; August 15, 1991. 
Comments Concerning Immediately Effective Orders 

Citing statements from the Geisen Board majority and the additional statement 

from Judge Farrar, NEI and STARS stated that immediately effective orders should be 

issued less frequently and be required to contain greater detail. These commenters also 

stated that the NRC staff should be required to release the Office of Investigations 

report and all evidence to the individual challenging the order in such a proceeding. 

The commenters also stated that the Commission should further define what constitutes 

“adequate evidence” for immediate effectiveness challenge purposes. The commenters 

suggested revising 10 CFR 2.202(a)(5) to remove the reference to “willful” violations 

because the NRC need not make an order immediately effective solely based on the 

violation’s willfulness. 

NEI and STARS proposed further changes to 10 CFR 2.202(c)(2)(ii) to clarify that 

the person challenging an immediately effective enforcement order need not testify in 

such a hearing because doing so may compromise his or her Fifth Amendment right 

against self-incrimination. The commenters also advocated including a requirement 

imposing more stringent requirements and qualifications for persons testifying on behalf 

of the NRC staff in challenges to immediately effective orders. Additionally, the 

commenters stated that the final rule should include an additional sentence stating that 

if the presiding officer orders live testimony, the parties may cross examine witnesses 

when it would assist the presiding officer’s decision on the motion to set aside the 

immediate effectiveness of the order. 

NEI and STARS commented that the revision to 10 CFR 2.202(c)(2)(iii) should 

also require that the NRC staff reply to a motion in writing, rather than providing the 
option to respond orally, in order to prevent the staff’s ability to “ambush” or “sandbag” 

the individual challenging the order. These commenters also stated that the final rule 

should make clear that NRC staff cannot use this opportunity to expand the scope of 

arguments set forth in the original immediately effective order. 

 NEI and STARS commented that the final rule should revise 10 CFR 

2.202(c)(2)(viii) to require that if the presiding officer sets aside an immediately effective 

order, the order setting aside immediate effectiveness will not be stayed automatically 

and will only be stayed if the NRC staff files and the Commission grants a motion for a 

stay under 10 CFR 2.342. 

NRC Response: The Commission disagrees with these comments and declines 

to adopt these changes to the NRC’s process for issuing and adjudicating immediately 

effective orders. The proposed rule sought comments on the changes to 10 CFR 

2.202(c); however, as stated in the proposed rule, these changes were intended to 

clarify evidentiary burdens and the authority of the presiding officer. The final rule 

clarifies that the NRC staff bears the burden of persuasion in hearings challenging the 

immediate effectiveness of orders and clarifies that the presiding officer has authority 

pursuant to 10 CFR 2.319 to order live testimony. The final rule also clarifies how live 

testimony can be requested and in what manner it may take form. The final rule also 

contains non-substantive changes intended to improve the clarity and readability of 10 

CFR 2.202 by dividing the lengthy paragraph (c) into shorter paragraphs. 

Several of the commenters’ proposed changes are either already addressed in 

this final rulemaking, or the current rules are adequately flexible to address their 

concerns without adopting their proposed changes. For example, with respect to the 
comment recommending that if the presiding officer orders live testimony, then the 

parties may cross examine witnesses when it would assist the presiding officer’s 

decision on the motion to set aside the immediate effectiveness of the order, the 

presiding officer already has the power to order cross examination pursuant to section 

2.319. Additionally, section 2.319 currently describes the duty of the presiding officer in 

an NRC adjudication to conduct a fair and impartial hearing and to take the necessary 

action to regulate the course of the hearing and the conduct of its participants. Parties 

can direct concerns that the NRC staff is inappropriately expanding the scope of 

argument to the presiding officer for resolution pursuant to this authority. The 

Commission does not agree with concerns that the NRC staff should reply in writing in 

advance of live testimony to prevent it from “ambushing” the individual challenging the 

order. If testimony of individuals is truthful and complete, knowing the staff’s response 

in advance of testifying should have little bearing on its substance. Further, with respect 

to the commenters’ constitutional concerns, it is well established that the Fifth 

Amendment privilege against self-incrimination can be asserted in administrative 

proceedings.66 Parties have invoked the privilege in NRC enforcement proceedings, 

including the Geisen proceeding.67 Given the availability of the privilege in NRC 

enforcement proceedings, the Commission declines to adopt the proposed change. 

As for the remaining comments, the Commission appreciates the commenters’ 

input on its process for issuing and adjudicating immediately effective orders, but 

additional substantive changes to section 2.202(c)(2) or proposals to significantly 

 

66 See Chavez v. Martinez, 538 U.S. 760, 770 (2003) (citing Kastigar v. United States, 406 U.S. 441, 453 

(1972)). 

67 See David Geisen, LBP-06-25, 64 NRC 367, 397 n.131 (2006). See also, e.g., Steven P. Moffitt, 

LBP-06-05, 64 NRC 431, 433 n.2 (2006). 
overhaul its procedures for challenging immediately effective orders are beyond the 

scope of this rulemaking. The Commission notes that the commenters are able to 

submit these recommendations as a petition for rulemaking via the 10 CFR 2.802 

petition for rulemaking process. The Commission takes the commenters’ concerns with 

fairness in its adjudicatory procedures seriously; however, the proposed changes to 

section 2.202 were limited to clarifying changes to address specific concerns regarding 

the application of section 2.202(c) in certain circumstances. The multiple additional 

procedural changes that the commenters recommend would be more appropriately 

addressed in the context of a comprehensive assessment of the NRC’s rules of practice 

and procedure in 10 CFR Part 2, which would ensure compliance with the NRC’s 

obligations under the Administrative Procedure Act to allow for notice and comment on 

proposed rules before they are adopted. Adopting the commenters’ proposed changes 

in this rulemaking would not allow for sufficient notice-and-comment opportunities for 

other interested parties, and the NRC therefore declines to do so. 

V. Section-by-Section Analysis. 

Immediate Effectiveness of Orders Rule Changes

Section 2.202

 The rule makes several changes to 10 CFR 2.202(c)(2)(i). The rule revises 10 

CFR 2.202(c)(2)(i) by dividing it into several smaller paragraphs. The rule revises 

paragraph 10 CFR 2.202(c)(2)(i) to include only the first two sentences of the current 10 

CFR 2.202(c)(2)(i), which concern the right of the party subject to an immediately 

effective order to challenge the immediate effectiveness of that order. The rule further 

revises the first sentence to add a cross reference to 10 CFR 2.202(a)(5) and make 

other minor, clarifying editorial changes to that sentence. 
 The rule adds a new paragraph 10 CFR 2.202(c)(2)(ii), which allows any party to 

file a motion with the presiding officer requesting that the presiding officer order live 

testimony. Paragraph 10 CFR 2.202(c)(2)(ii) also authorizes the presiding officer, on its 

own motion, to order live testimony. 

 The rule redesignates the third sentence of the current 10 CFR 2.202(c)(2)(i) as 

a new paragraph 10 CFR 2.202(c)(2)(iii), which authorizes the NRC staff to present its 

response through live testimony rather than a written response in those cases where 

the presiding officer orders live testimony. 

 The rule adds a new paragraph 10 CFR 2.202(c)(2)(iv), which provides that the 

presiding officer shall conduct any live testimony pursuant to 10 CFR 2.319. 

 The rule makes a minor clarifying change to 10 CFR 2.202(c)(2)(ii) and 

redesignates that paragraph as 10 CFR 2.202(c)(2)(v). 

 The rule adds a new paragraph 10 CFR 2.202(c)(2)(vi), which clarifies that the 

licensee or other person challenging the immediate effectiveness of an order bears the 

burden of going forward, whereas the NRC staff bears the burden of persuasion that 

adequate evidence supports the grounds for the immediately effective order and that 

immediate effectiveness is warranted. 

 The rule makes minor clarifying changes to the fourth and fifth sentences of 10 

CFR 2.202(c)(2)(i), which direct the presiding officer’s expeditious disposition of the 

motion to set aside immediate effectiveness and prohibit the presiding officer from 

staying the immediate effectiveness of the order, respectively, and redesignates those 

sentences as a new paragraph 10 CFR 2.202(c)(2)(vii). 

 The rule makes minor clarifying changes to the eighth sentence of 10 CFR 
2.202(c)(2)(i), and redesignates the sixth, seventh, and eighth sentences of 10 CFR 

2.202(c)(2)(i) as new paragraph 10 CFR 2.202(c)(2)(viii). These sentences 1) direct the 

presiding officer to uphold the immediate effectiveness of the order if it finds that there is 

adequate evidence to support immediate effectiveness, 2) address the final agency 

action status of an order upholding immediate effectiveness, 3) address the presiding 

officer’s prompt referral of an order setting aside immediate effectiveness to the 

Commission, and 4) state that the order setting aside immediate effectiveness will not 

be effective pending further order of the Commission. 

Conforming Amendments to 10 CFR 150.2 

 This rule revises the last sentence of 10 CFR 150.2 by adding a cross reference 

to 10 CFR 61.9b and replacing the cross reference to 10 CFR 71.11 with a cross 

reference to 10 CFR 71.8. 

VI. Regulatory Flexibility Certification. 

 Under the Regulatory Flexibility Act, as amended (5 U.S.C. 605(b)), the NRC 

certifies that this rule does not have a significant economic impact on a substantial 

number of small entities. This final rule affects a number of “small entities” as defined 

by the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 

2.810). However, as indicated in Section VII, “Regulatory Analysis,” these amendments 

do not have a significant economic impact on the affected small entities. The NRC 

received no comment submissions from an identified small entity regarding the impact 

of the proposed rule on small entities. 
VII. Regulatory Analysis. 

 The amendments to the rule governing hearings on challenges to immediate 

effectiveness of orders do not change the existing processes but merely clarify the rule. 

The final rule makes minor, conforming amendments to 10 CFR 150.2. These 

amendments do not result in a cost to the NRC or to respondents in hearings on 

challenges to immediate effectiveness of orders, but a benefit accrues to the extent that 

potential confusion over the meaning of the NRC’s regulations is removed. The NRC 

believes that this final rule improves the efficiency of NRC enforcement proceedings 

without imposing costs on either the NRC or on participants in these proceedings. 

VIII. Backfitting and Issue Finality. 

 The final rule revises the immediate effectiveness provisions at 10 CFR 2.202 to 

state that the respondent bears the burden of going forward with evidence to challenge 

immediate effectiveness and the NRC staff bears the burden of persuasion on whether 

adequate evidence supports immediate effectiveness. The final rule also revises 10 

CFR 2.202 to clarify that the presiding officer is permitted to order live testimony, either 

by its own motion, or upon the motion of any party to the proceeding. 

 The revisions to 10 CFR 2.202 clarify the agency’s adjudicatory procedures with 

respect to challenges to immediate effectiveness of orders. These revisions do not 

change, modify, or affect the design, procedures, or regulatory approvals protected 

under the various NRC backfitting and issue finality provisions. Accordingly, the 

revisions to the adjudicatory procedures do not represent backfitting imposed on any 

entity protected by backfitting provisions in 10 CFR Parts 50, 70, 72, or 76, nor are they 

inconsistent with any issue finality provision in 10 CFR Part 52. 
IX. Cumulative Effects of Regulation.

 Cumulative Effects of Regulation do not apply to this final rule because it is an 

administrative rule. The final rule only 1) makes amendments to the NRC’s regulations 

regarding challenges to the immediate effectiveness of NRC enforcement orders to 

clarify the burden of proof and to clarify the authority of the presiding officer to order live 

testimony in resolving these challenges and 2) makes conforming amendments to 10 

CFR 150.2. 

X. Plain Writing. 

 The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to 

write documents in a clear, concise, and well-organized manner. The NRC has written 

this document to be consistent with the Plain Writing Act as well as the Presidential 

Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 

FR 31883). 

XI. National Environmental Policy Act. 

 The NRC has determined that the issuance of this final rule relates to 

enforcement matters and, therefore, falls within the scope of 10 CFR 51.10(d). In 

addition, the NRC has determined that the issuance of this final rule is the type of action 

described in categorical exclusions at 10 CFR 51.22(c)(1)–(2). Therefore, neither an 

environmental impact statement nor an environmental assessment has been prepared 

for this rulemaking. 

XII. Paperwork Reduction Act. 
 This rule does not contain any information collection requirements and, therefore, 

is not subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 

3501 et seq.). 

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 Office of Management and Budget 

(OMB) control number. 

XIII. Congressional Review Act. 

 This action is a rule as defined in the Congressional Review Act (5 U.S.C. §§ 

801-808). However, OMB has not found it to be a major rule as defined in the 

Congressional Review Act. 

XIV. Compatibility of Agreement State Regulations. 

 Under the “Policy Statement on Adequacy and Compatibility of Agreement State 

Programs” approved by the Commission on June 30, 1997, and published in the 

Federal Register (62 FR 46517; September 3, 1997), this final rule will be a matter of 

compatibility between the NRC and the Agreement States, thereby providing 

consistency among the Agreement States and the NRC requirements. The NRC staff 

analyzed the rule in accordance with the procedure established within Part III, 

“Categorization Process for NRC Program Elements,” of Handbook 5.9 to Management 

Directive 5.9, “Adequacy and Compatibility of Agreement State Programs” (see

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 are those 

program elements that are basic radiation protection standards and scientific terms and 

definitions that are necessary to understand radiation protection concepts. An 

Agreement State should adopt Category A program elements in an essentially identical 

manner to provide uniformity in the regulation of agreement material on a nationwide 

basis. Compatibility Category B are those program elements that apply to activities that 

have direct and significant effects in multiple jurisdictions. An Agreement State should 

adopt Category B program elements in an essentially identical manner. Compatibility 

Category C are those program elements that do not meet the criteria of Category A or 

B, but the essential objectives of which an Agreement State should adopt to avoid 

conflict, duplication, gaps, or other conditions that would jeopardize an orderly pattern in 

the regulation of agreement material on a nationwide basis. An Agreement State 

should adopt the essential objectives of the Category C program elements. 

Compatibility Category D are those program elements that do not meet any of the 

criteria of Category A, B, or C, and, therefore, do not need to be adopted by Agreement 

States for purposes of compatibility. 

 Health and Safety (H&S) are program elements that are not required for 

compatibility but are identified as having a particular health and safety role (i.e., 

adequacy) in the regulation of agreement material within the State. Although not 

required for compatibility, the State should adopt program elements in this H&S 
category based on those of the NRC that embody the essential objectives of the NRC 

program elements because of particular health and safety considerations. Compatibility 

Category NRC are those program elements that address areas of regulation that cannot 

be relinquished to Agreement States under the Atomic Energy Act, as amended, or 

provisions of 10 CFR. These program elements are not adopted by Agreement States. 

The following table lists the parts and sections that will be revised and their 

corresponding categorization under the “Policy Statement on Adequacy and 

Compatibility of Agreement State Programs.” The Agreement States have 3 years from 

the final rule’s effective date, as noted in the Federal Register, to adopt compatible 

regulations. 

Table 1. Compatibility Table for Final Rule 

Section Change Subject Compatibility 

Existing New 

Part 2 

2.202(c) Revised Orders NRC NRC 

Part 150 

150.2 Revised Scope D D 

XV. Voluntary Consensus Standards. 

 The National Technology Transfer and Advancement Act of 1995, Pub. Law 104-

113, requires that Federal agencies use technical standards that are developed by 

voluntary consensus standards bodies unless the use of such a standard is inconsistent 

with applicable law or is otherwise impractical. In this rule, the NRC is clarifying two 

aspects of challenges to the immediate effectiveness of NRC enforcement orders: 1) 

the burden of proof and 2) the authority of the presiding officer to order live testimony in 
resolving such a challenge. The NRC is also making conforming amendments to 10 

CFR 150.2. This action does not constitute the establishment of a standard that 

contains generally applicable requirements. 

List of Subjects 

10 CFR Part 2 

 Administrative practice and procedure, Antitrust, Byproduct material, Classified 

information, Environmental protection, Nuclear materials, Nuclear power plants and 

reactors, Penalties, Sex discrimination, Source material, Special nuclear material, 

Waste treatment and disposal. 

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. 552 and 553, the NRC is adopting the following amendments to 

10 CFR Parts 2 and 150 as follows: 

PART 2 -- AGENCY RULES OF PRACTICE AND PROCEDURE 

1. The authority citation for part 2 continues to read as follows: 
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); FOIA 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, 2135); Nuclear Waste Policy Act sec. 114(f) (42 

U.S.C. 10143(f)); National Environmental Protection 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; AEA 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 sec. 184, 

189 (42 U.S.C. 2234, 2239). Subpart N also issued under Atomic Energy Act sec. 189 

(42 U.S.C. 2239). 
2. In § 2.202, revise paragraph (c)(2) to read as follows: 

§ 2.202 Orders. 

* * * * * 

(c) * * * 

(2)(i) The licensee or other person to whom the Commission has issued an 

immediately effective order in accordance with paragraph (a)(5) of this section, may, in 

addition to demanding a hearing, at the time the answer is filed or sooner, file a motion 

with the presiding officer to set aside the immediate effectiveness of the order on the 

ground that the order, including the need for immediate effectiveness, is not based on 

adequate evidence but on mere suspicion, unfounded allegations, or error. The motion 

must state with particularity the reasons why the order is not based on adequate 

evidence and must be accompanied by affidavits or other evidence relied on. 

(ii) Any party may file a motion with the presiding officer requesting that the 

presiding officer order live testimony. Any motion for live testimony must be made in 

conjunction with the motion to set aside the immediate effectiveness of the order or any 

party’s response thereto. The presiding officer may, on its own motion, order live 

testimony. The presiding officer’s basis for approving any motion for, or ordering on its 

own motion, live testimony shall be that taking live testimony would assist in its decision 

on the motion to set aside the immediate effectiveness of the order. 

(iii) The NRC staff shall respond in writing within 5 days of the receipt of either a 

motion to set aside the immediate effectiveness of the order or the presiding officer’s 

order denying a motion for live testimony. In cases in which the presiding officer orders 

live testimony, the staff may present its response through live testimony rather than a 

written response. 
(iv) The presiding officer shall conduct any live testimony pursuant to its powers 

in § 2.319 of this part, except that no subpoenas, discovery, or referred rulings or 

certified questions to the Commission shall be permitted for this purpose. 

(v) The presiding officer may, on motion by the staff or any other party to the 

proceeding, where good cause exists, delay the hearing on the immediately effective 

order at any time for such periods as are consistent with the due process rights of the 

licensee or other person and other affected parties. 

(vi) The licensee or other person challenging the immediate effectiveness of an 

order bears the burden of going forward with evidence that the immediately effective 

order is not based on adequate evidence, but on mere suspicion, unfounded 

allegations, or error. The NRC staff bears the burden of persuading the presiding officer 

that adequate evidence supports the grounds for the immediately effective order and 

immediate effectiveness is warranted. 

(vii) The presiding officer shall issue a decision on the motion to set aside the 

immediate effectiveness of the order expeditiously. During the pendency of the motion 

to set aside the immediate effectiveness of the order or at any other time, the presiding 

officer may not stay the immediate effectiveness of the order, either on its own motion, 

or upon motion of the licensee or other person. 

(viii) The presiding officer shall uphold the immediate effectiveness of the order if 

it finds that there is adequate evidence to support immediate effectiveness. An order 

upholding immediate effectiveness will constitute the final agency action on immediate 

effectiveness. The presiding officer will promptly refer an order setting aside immediate 

effectiveness to the Commission and such order setting aside immediate effectiveness 
will not be effective pending further order of the Commission. 

* * * * * 

PART 150 -- EXEMPTIONS AND CONTINUED REGULATORY AUTHORITY IN 

AGREEMENT STATES AND IN OFFSHORE WATERS UNDER SECTION 274 

3. The authority citation for part 150 continues to read as follows: 

Authority: Atomic Energy Act 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 

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, 

10161). 

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). 

4. In § 150.2, revise the last sentence to read as follows: 

§ 150.2 Scope. 

 * * * This part also gives notice to all persons who knowingly provide 

to any licensee, applicant for a license or certificate or quality assurance program 

approval, holder of a certificate or quality assurance program approval, contractor, or 

subcontractor, any components, equipment, materials, or other goods or services that 

relate to a licensee's, certificate holder's, quality assurance program approval holder's 

or applicant's activities subject to this part, that they may be individually subject to NRC 
enforcement action for violation of §§ 30.10, 40.10, 61.9b, 70.10 and 71.8. 

 

 Dated at Rockville, Maryland, this day of _______ 2015.

 For the Nuclear Regulatory Commission. 

 

 

 Annette L. Vietti-Cook, 

 Secretary of the Commission.