Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Notices 60923

If a hearing is requested, the

Commission will make a final

determination on the issue of no

significant hazards consideration. The

final determination will serve to decide

when the hearing is held.

If the final determination is that the

amendment request involves no

significant hazards consideration, the

Commission may issue the amendment

and make it immediately effective,

notwithstanding the request for a

hearing. Any hearing held would take

place after issuance of the amendment.

If the final determination is that the

amendment request involves a

significant hazards consideration, any

hearing held would take place before

the issuance of any amendment.

A request for a hearing or a petition

for leave to intervene must be filed with

the Secretary of the Commission, U.S.

Nuclear Regulatory Commission,

Washington, DC 20555–0001, Attention:

Rulemakings and Adjudications Staff

may be delivered to the Commission’s

Public Document Room, the Gelman

Building, 2120 L Street, NW.,

Washington, DC, by the above date. A

copy of the petition should also be sent

to the Office of the General Counsel,

U.S. Nuclear Regulatory Commission,

Washington, DC 20555–0001, and to R.

Alexander Glenn, General Counsel,

Florida Power Corporation, MAC–A5A,

P.O. Box 14042, St. Petersburg, Florida

33733–4042, attorney for the licensee.

Nontimely filings of petitions for

leave to intervene, amended petitions,

supplemental petitions and/or requests

for hearing will not be entertained

absent a determination by the

Commission, the presiding officer or the

presiding Atomic Safety and Licensing

Board that the petition and/or request

should be granted based upon a

balancing of the factors specified in 10

CFR 2.714(a)(1) (i)–(v) and 2.714(d).

For further details with respect to this

action, see the application for

amendment dated October 4, 1997,

which is available for public inspection

at the Commission’s Public Document

Room, the Gelman Building, 2120 L

Street, NW., Washington, DC, and at the

local public document room, located at

the Coastal Region Library, 8619 W.

Crystal Street, Crystal River, Florida.

Dated at Rockville, Maryland, this 6th day

of November 1997.

For the Nuclear Regulatory Commission.

L. Raghavan,

Sr. Project Manager, Project Directorate II–

3, Division of Reactor Projects—I/II Office

of Nuclear Reactor Regulation.

[FR Doc. 97–29889 Filed 11–12–97; 8:45 am]

BILLING CODE 7590–01–P

NUCLEAR REGULATORY

COMMISSION

[Docket No. 030–31373; License No. 12–

16559–01; EA 97–207]

In the Matter of Conam Inspection, Inc.

Itasca, IL; Order Imposing Civil

Monetary Penalty

I

Conam Inspection, Inc. (Conam or

Licensee) is the holder of Byproduct

Materials License No. 12–16559–01

issued by the Nuclear Regulatory

Commission (NRC or Commission) on

January 2, 1990. The license authorizes

the Licensee to possess and use certain

byproduct materials in accordance with

the conditions specified therein at the

Licensee’s facilities in Columbus, Ohio;

Gary, Indiana; Reading, Pennsylvania;

Gallipolis, Ohio; and at temporary job

sites anywhere in the United States

where the NRC maintains jurisdiction

for regulating the use of licensed

material.

II

An inspection and investigation of the

Licensee’s activities were conducted

between March 28, 1996 and November

12, 1996. The results of the inspection

and investigation indicated that the

Licensee had not conducted its

activities in full compliance with NRC

requirements. A written Notice of

Violation and Proposed Imposition of

Civil Penalty (Notice) was served upon

the Licensee by letter dated June 9,

1997. The Notice states the nature of the

violations, the provisions of the NRC’s

requirements that the Licensee had

violated, and the amount of the civil

penalty proposed for three of the

violations in the aggregate (Violations

I.A, I.B, and I.C).

The Licensee responded to the Notice

in a letter dated July 7, 1997. In its

response, the Licensee denied

Violations I.B and I.C, and requested

remission or full mitigation of the civil

penalty.

III

After consideration of the Licensee’s

response and arguments for mitigation

contained therein, the NRC staff has

determined, as set forth in the Appendix

to this Order, that the Licensee did not

provide an adequate basis for

withdrawing Violations I.B and I.C, or

mitigating the severity level of

Violations I.A, I.B, and I.C in the

aggregate, or mitigating the civil penalty

associated with Violations I.A, I.B, and

I.C. Therefore, a civil penalty in the

amount of $16,000 should be imposed.

IV

In view of the foregoing and pursuant

to Section 234 of the Atomic Energy Act

of 1954, as amended (Act), 42 U.S.C.

2282, and 10 CFR 2.205, it is hereby

ordered that:

The Licensee pay a civil penalty in the

amount of $16,000 within 30 days of the date

of this Order, by check, draft, money order,

or electronic transfer, payable to the

Treasurer of the United States and mailed to

James Lieberman, Director, Office of

Enforcement, U.S. Nuclear Regulatory

Commission, One White Flint North, 11555

Rockville Pike, Rockville, MD 20852–2738.

V

The Licensee may request a hearing

within 30 days of the date of this Order.

Where good cause is shown,

consideration will be given to extending

the time to request a hearing. A request

for extension of time must be made in

writing to the Director, Office of

Enforcement, U.S. Nuclear Regulatory

Commission Washington, D.C. 20555,

and include a statement of good cause

for the extension. A request for a

hearing should be clearly marked as a

‘‘Request for an Enforcement Hearing’’

and shall be addressed to the Director,

Office of Enforcement, U.S. Nuclear

Regulatory Commission Washington,

D.C. 20555, with a copy to the

Commission’s Document Control Desk,

Washington, D.C. 20555. Copies also

shall be sent to the Assistant General

Counsel for Hearings and Enforcement

at the same address and to the Regional

Administrator, NRC Region III, 801

Warrenville Road, Lisle, IL 60532.

If a hearing is requested, the

Commission will issue an Order

designating the time and place of the

hearing. If the Licensee fails to request

a hearing within 30 days of the date of

this Order (or if written approval of an

extension of time in which to request a

hearing has not been granted), the

provisions of this Order shall be

effective without further proceedings. If

payment has not been made by that

time, the matter may be referred to the

Attorney General for collection.

In the event the Licensee requests a

hearing as provided above, the issues to

be considered at such hearing shall be:

(a) Whether the Licensee was in

violation of the Commission’s

requirements as set forth in Violations

I.B and I.C of the Notice referenced in

Section II above, and

(b) Whether, on the basis of such

violations and the additional violations

set forth in the Notice of Violation that

the Licensee admitted, this Order

should be sustained.

For the Nuclear Regulatory Commission.
60924 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Notices

Dated at Rockville, Maryland this 5th day

of November 1997.

James Lieberman,

Director, Office of Enforcement.

Appendix A—Evaluations and

Conclusion

On June 9, 1997, the NRC issued to

Conam Inspection, Inc., (Licensee or

Conam) a Notice of Violation and

Proposed Imposition of Civil Penalty

(Notice) in the amount of $16,000 for

violations identified during an NRC

inspection and investigation conducted

from March 28 through November 12,

1996. The Licensee responded to the

Notice by letter dated July 7, 1997. With

regard to the violations assessed a civil

penalty, the Licensee admitted Violation

I.A; denied Violations I.B and I.C; and

requested remission or full mitigation of

the civil penalty. The NRC’s evaluations

and conclusion regarding the Licensee’s

requests are as follows:

Restatement of Violation I.B

I.B 10 CFR 34.43(b) requires, in part,

a licensee to ensure that a survey with

a calibrated and operable radiation

survey instrument is made after each

radiographic exposure to determine that

the sealed source has been returned to

its shielded position. The survey must

include the entire circumference of the

radiographic exposure device and any

source guide tube.

Contrary to the above, on February 27,

1996, at Eli Lilly, Indianapolis, IN, a

Licensee radiographer did not perform

an adequate survey after each

radiographic exposure to determine that

the sealed source had been returned to

its shielded position, in that the survey

did not include the entire circumference

of the radiographic exposure device and

the source guide tube.

Summary of Licensee’s Response to

Violation I.B

The Licensee, in its response, denies

Violation I.B and states that on February

28, 1996, the day following the incident,

the radiographer expressly stated to the

Licensee’s Radiation Safety Officer

(RSO) that he had performed a full 360-

degree circumferential survey of the

radiographic exposure device.

NRC Evaluation of Licensee’s Response

to Violation I.B

The specific issue addressed in

Violation I.B is whether the

radiographer performed the required

survey to determine that the source had

completely been withdrawn into the

radiographic exposure device. This

requires, among other things, that the

radiographer be aware of the results of

the survey, especially the dose rate

measured at the exit port (front) of the

radiographic exposure device. As noted

on page 7 of the Licensee’s reply to the

Notice, the Licensee states (regarding

the radiographer’s survey) that: ‘‘He

then failed to properly read his survey

meter when he performed a radiation

survey in a 360-degree motion around

the camera.’’ The fact that the

radiographer improperly read the survey

meter means that he failed to properly

determine: (1) Whether the source had

been completely withdrawn into the

radiographic exposure device; and (2)

the radiological conditions and

potential hazards incident to use of

radioactive material.

In addition, during the investigation

conducted by the NRC’s Office of

Investigations, the radiographer stated

that he surveyed the radiographic

exposure device, but only on the sides.

He also stated to the investigator that

because of the position of the

radiographic exposure device, he did

not survey the front part. This conflicts

with the information provided by the

radiographer to the Licensee’s RSO, but

appears to be more in line with the facts

of the case given the elevated exposure

result to the radiographer’s film badge.

In either case, whether the

radiographer improperly read the survey

meter or whether the radiographer failed

to survey the front part, the NRC

concludes that Violation I.B occurred as

stated in the Notice.

Restatement of Violation I.C

I.C 10 CFR 20.1201(a)(1)(i) requires,

with exceptions not applicable here,

that a licensee control the occupational

dose to individual adults to an annual

dose limit of 5 rems total effective dose

equivalent.

Contrary to the above, the Licensee

did not limit the annual occupational

dose to an adult radiographer to 5 rems,

total effective dose equivalent.

Specifically, the individual received a

radiation dose of a minimum of 6 rems,

total effective dose equivalent, during

an event on February 27, 1996.

Summary of Licensee’s Response to

Violation I.C

The Licensee, in its response, denies

Violation I.C, states that the NRC’s

methodology in determining the total

effective dose equivalent is flawed, and

does not agree with the intent of the

regulations. The Licensee contends that

using conventional dose assessment

models, consensus industry standards,

and the NRC’s own definitions, the

maximum likely Total Effective Dose

Equivalent (TEDE) incurred by the

radiographer during the event was 2.9

rems, based upon the radiographer’s

description of time and motion.

As a basis for its argument, the

Licensee asserts that while the

Licensee’s consultant calculated a dose

to the right thigh of 9.369 rems, this

dose does not constitute the TEDE. The

Licensee states that the dose limits are

based on the 1976 [1977]

recommendations of the International

Commission on Radiological Protection

(ICRP), which states that there is a

predictable relationship between

irradiation of the whole body and

biological effects. The Licensee argues

that the dose to the radiographer’s thigh

is not an appropriate predictor of

biological effects, and thus should not

be compared to the primary dose limit

in 10 CFR 20.1201.

The Licensee asserts that the ICRP

recommendations should take

precedence in determining how the

TEDE is computed. As such, in

calculating the TEDE, the Licensee uses

weighting factors for each tissue area

which are derived from ICRP

Publication 26. The Licensee believes

this is an acceptable approach because

the Statements of Consideration for the

issuance of the revised 10 CFR Part 20

included, as reasons for the revision, the

need to incorporate updated scientific

information, to reflect changes in the

basic philosophy of radiation

protection, and to put into practice

recommendations from ICRP 26 and

subsequent ICRP publications. The

Licensee asserts that sections 10 CFR

20.1003, which defines the TEDE, and

10 CFR 20.1201(a), which specifies

exposure limits, conform with ICRP 26

recommendations.

The Licensee maintains that the

NRC’s guidance on interpretation of 10

CFR 20.1201(c) permits use of external

dose weighting factors. However, the

Licensee argues that the language in 10

CFR 20.1201(c): (1) Conflicts with the

definition of deep-dose equivalent

provided in 10 CFR 20.1003; (2) is

inconsistent with the ICRP

recommendations; and (3) deviates from

the fundamental principles underlying

the dose limits in 10 CFR Part 20.

The Licensee does note that the

specific use of weighting factors other

than 1.0 for all organs was not approved

by 10 CFR Part 20; rather, 10 CFR

20.1003 states that ‘‘[f]or the purpose of

weighting the external whole-body dose

(for adding it to the internal dose), a

single weighting factor, Wt=1.0, has

been specified. The use of other

weighting factors for external exposures

will be approved on a case-by-case basis

until such time as specific guidance is

issued.’’ The Licensee notes that the

NRC has not yet issued specific
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Notices 60925

1The NRC’s definition is based, in part, on the

fact that these portions of the whole body contain

blood-forming organs.

guidance in interpreting this issue;

however, since the American National

Standards Institute (ANSI) has issued

N13.41, ‘‘Criteria for Performing

Multiple Dosimetry,’’ the Licensee

believes that it should be able to use this

methodology in computing its TEDE

value. This guidance was utilized and

the resulting TEDE was 2.9 rems.

The Licensee asserts that in light of

the conflicting regulatory language in 10

CFR Part 20 regarding non-uniform

exposure of the whole body, and the fact

that 10 CFR 20.1003 allows weighting

factors to be considered, the dose

determined for the radiographer using

ANSI N13.41 protocol was appropriate

and consistent with the rationale

underlying the occupational dose limits.

NRC Evaluation of Licensee’s Response

to Violation I.C

The specific issue addressed in

Violation I.C is whether the

radiographer’s total effective dose

equivalent as defined in the regulations

exceeded the regulatory limits. The

Licensee’s use of ICRP 26 and ANSI

N13.41 (i.e., use of a

compartmentalization methodology to

sum the effective dose equivalents for

various areas of the whole body) was

neither approved by the NRC nor in

accordance with NRC requirements, for

the reasons described below.

1. NRC Basis for Violation I.C

As noted in the Notice, 10 CFR

20.1201(a)(1)(i) requires, in part, that a

licensee control the occupational dose

to individual adults to an annual dose

limit of 5 rems total effective dose

equivalent. In addition, 10 CFR

20.1201(c) requires, in part, that the

assigned deep-dose equivalent must be

for the part of the body receiving the

highest exposure and that the deep-dose

equivalent may be assessed from

surveys or other radiation

measurements for the purpose of

demonstrating compliance with the

occupational dose limits, if the

individual monitoring device was not in

the region of highest potential exposure.

As defined in 10 CFR 20.1003, Whole

body means: ‘‘for purposes of external

exposure, head, trunk (including male

gonads), arms above the elbow, or legs

above the knee.’’ 1

Based on the findings in the NRC

inspection report dated November 18,

1996, the NRC concluded, as described

in the Notice, that the radiographer

received a TEDE of 6 rems. The

conclusion was based on: (1)

Measurements of time and distances as

re-enacted by the radiographer and the

Licensee’s film badge dose; and (2) the

dose to the part of the body receiving

the highest exposure (i.e., upper left

thigh), given that the individual

monitoring device was not in the region

of highest potential exposure, the dose

field from the radiographic exposure

device was non-uniform, and the

position of the radiographer and his film

badge in relationship to the

radiographic exposure device.

2. The Licensee’s Use of ICRP 26 and

ANSI N13.41

The NRC agrees that the dose limits

in 10 CFR Part 20 are based on the ICRP

26 recommendations and acknowledges

that the radiographer’s thigh may not be

an appropriate predictor of biological

effects. However, the Licensee’s use of

ICRP 26 and the draft ANSI N13.41 for

calculating the radiographer’s wholebody dose is inappropriate in this case.

While the ICRP 26 recommendations

in principle permit the use of external

weighting factors, no specific

recommendations were included

concerning the use of weighting factors

for external dose because there are

practical problems with such use. The

application of weighting factors also

entails calculation of organ doses

instead of whole-body doses from

external radiation. One component of

this calculation is the estimation of

radiation attenuation as a function of

the depth in the body. Therefore, as

noted in the NRC’s Statement of

Consideration for 10 CFR Part 20 (56 FR

23369), the Commission decided that

‘‘application of weighting factors for

external exposures will be evaluated on

a case-by-case basis until more guidance

and additional weighting factors (such

as for the head and the extremities) are

recommended * * * The use of other

weighting factors for external exposure

may be approved on a case-by-case

basis upon request to the NRC.’’

(emphasis added). This means that, if a

licensee proposes to use other weighting

factors for external use, the licensee

needs to develop the basis and technical

justification for its request, submit the

request to the NRC, and await approval

of its request before using any modified

weighting factors. To date, the Licensee

has not submitted to the Commission

such a request for an exemption of 10

CFR 20.1201.

With regard to ANSI N13.41, this is a

draft standard that has been neither

approved by ANSI, nor reviewed and

approved by the Commission for use by

NRC licensees. Moreover, ANSI N13.41

is not applicable because this case falls

outside of the scope of that standard.

This is evident from the standard itself,

which states, under Scope, page 9, that

‘‘this standard contains criteria

applicable to routine occupational

activities (emphasis added) for when

and how to use multiple dosimeters to

monitor the body and extremity of

individuals exposed to sources of

ionizing radiation.’’ The next paragraph

under this section goes on to state,

‘‘Sudden or unexpected changes in the

radiation environment as might occur

during accidents are beyond the scope

of this standard’’ (emphasis added).

The dose calculated by the consultant

to the radiographer’s right thigh was

9.369 rems. As noted in the Licensee’s

response, the footnote attached to 10

CFR 20.1003 specifies that a single

weighting factor, Wt=1.0, be used for

external exposures.

However, rather than using this

weighting factor, the Licensee applied

the factors provided in ANSI N13.41

(which are less than 1.0) to calculate

exposures of portions of the whole body

to arrive at the overall dose

determination. The Licensee’s use of

weighting factors (on the basis that the

NRC has not issued new weighting

factors) without prior NRC approval is

contrary to NRC requirements. Given

the above, the Licensee’s method for

calculating the radiographer’s exposure

is incorrect.

3. Arguments Concerning Deep-Dose

Equivalent

10 CFR 20.1201(c) requires, in part,

that the assigned deep-dose equivalent

must be for the part of the body

receiving the highest exposure. 10 CFR

20.1003 defines deep-dose equivalent as

the dose equivalent at a tissue depth of

1 cm (1000 mg/cm2) [regardless of the

part of the whole body that is exposed].

Given that ICRP 26 did not include

specific recommendations concerning

the use of weighting factors for external

dose, and the fact that there are practical

problems in using weighting factors to

assess external exposure as noted above,

the NRC disagrees with the Licensee’s

argument that 10 CFR 20.1201(c) is

inconsistent with the ICRP

recommendations and that 10 CFR

20.1201(c) deviates from the

fundamental principles underlying the

dose limits in 10 CFR Part 20.

4. Use of the Consultant Results and

Part 20 Weighting Factors

The NRC bases its enforcement

actions on its regulations as codified in

Title 10, Code of Federal Regulations. In

this case, 10 CFR 20.1003 defines the

weighting factor for the whole body as

1.0. As noted in the Licensee’s response,

the NRC has not approved the use of
60926 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Notices

other weighting factors for external

exposures nor has the NRC issued

specific guidance on the use of other

weighting factors. The regulations do

allow for the use of a different

methodology, but only after review and

prior approval by the NRC. In this case,

such approval was not obtained by the

Licensee. Because the thigh (right or

left) is an area of the body meeting the

definition for whole body, the

appropriate weighting factor per the

regulations is 1.0. Therefore, if the

Licensee chooses to use the consultant’s

results in conjunction with the Part 20

weighting factors, the radiographer’s

TEDE for the event would be:

Dose to right thigh (9.369 rems) ×

weighting factor (1.0) = 9.369 rems

The Licensee correctly notes that the

limit for whole-body exposure in 10

CFR 20.1201(a)(1)(i) is a TEDE of 5

rems. 10 CFR 20.1003 defines the TEDE

as the sum of the deep-dose equivalent

(external exposure) and committed

effective dose equivalent (internal

exposure). In this case, the TEDE can be

considered to be equal to the deep-dose

equivalent, because there was no

internal exposure involved.

The circumstances surrounding the

exposure, as described in the inspection

report and by the radiographer during

the conduct of the NRC’s investigation,

demonstrated that the radiographer’s

body was between the radiographic

exposure device and the radiographer’s

film badge. As noted in the

radiographer’s and RSO’s description of

the Licensee’s time-motion study, no

props were used—the event was

discussed at a table with the

radiographer describing to the RSO

what occurred. During this time-motion

discussion, it was not clear that the

radiographer’s film badge was at the

point nearest the source. It was clear

that the beam from the exit port of the

radiographic exposure device would be

very directional and non-uniform. Later,

on April 11, 1996, a re-enactment of the

event by the radiographer in the

presence of the Licensee’s RSO and NRC

personnel was performed and

appropriate props were used. The

radiographer was asked to demonstrate

his activities at the time the exposure

occurred. This re-enactment provided

information that the Licensee had not

obtained during its verbal time-motion

discussion, namely, that the

radiographer’s leg was significantly

closer to the source than was his film

badge. For the sake of argument, the

NRC has chosen to utilize the Licensee’s

dose calculation based on its verbal

characterization, and the resulting dose

obtained to the right thigh. If the

Licensee chooses to use the consultant’s

results (which utilized variables from

the NRC’s re-enactment) in conjunction

with the Part 20 weighting factors, the

radiographer’s TEDE for the event

would be:

Dose to left thigh (42.075 rems) ×

weighting factor (1.0) = 42.075 rems

10 CFR 20.1201(c) states that ‘‘the

assigned deep-dose equivalent and

shallow-dose equivalent must be for the

part of the body receiving the highest

exposure. The deep-dose equivalent, eye

dose equivalent and shallow-dose

equivalent may be assessed from

surveys or other radiation

measurements for the purpose of

demonstrating compliance with the

occupational dose limits, if the

individual monitoring device was not in

the region of highest potential exposure,

or the results of individual monitoring

are unavailable.’’ In this case, the

individual monitoring device was not in

the region of highest potential exposure,

given the non-uniform nature of the

dose field from the radiographic

exposure device and the position of the

radiographer and his film badge in

relationship to the radiographic

exposure device. Therefore, per this

requirement, the assigned deep-dose

equivalent must be for the right thigh

(using the Licensee’s computation), as it

is part of the whole body. This results

in an assigned deep-dose equivalent of

9.369 rems. As noted above, the TEDE

consists of the sum of the deep-dose

equivalent and committed effective dose

equivalent. In this case, it is equal to the

deep-dose equivalent, 9.369 rems, a

value that is in excess of the limit

specified in 10 CFR 20.1201(a)(1)(i).

Given the above, the NRC concludes

that: (a) The Licensee has not provided

a basis to substantiate that the

radiographer’s TEDE was below 5 rems;

and (b) Violation I.C occurred as stated

in the Notice.

Summary of Licensee’s Request for

Remission or Mitigation and

Reconsideration of Severity Level

The Licensee offered several

arguments in support of its request for

remission or mitigation of the proposed

penalty. Below is a summary listing of

the Licensee’s arguments that are related

to its request for remission or

mitigation, some of which have been

consolidated. The NRC’s evaluation

follows each argument.

Appendix A

1. Licensee’s Argument

The Licensee asserts that violations

cited in Section I of the Notice should

not be considered willful, for the

following reasons:

• Based on the Licensee’s discussion

of the event on February 28, 1996,

between the RSO and the radiographer,

the Licensee concluded that the

radiographer was negligent in failing to

rotate the selector ring from the

‘‘operate’’ to the ‘‘lock’’ position and

failing to depress the plunger

mechanism of the radiographic

exposure device.

• This act was not the result of

deficiencies in the Licensee’s Radiation

Safety Program, nor did it follow other

incidents of a similar nature. As

evidence for its argument, the Licensee

notes that seven prior unannounced

NRC inspections had not identified any

violations of applicable regulations.

• The Licensee disputes the fact that

it was a ‘‘typical’’ practice of Conam

radiographers to rely upon the

automatic locking mechanism of their

radiographic exposure devices rather

than locking them in the manner

required by the Licensee’s radiation

safety procedures.

• The Licensee believes that

‘‘[b]ecause the NRC’s conclusion that a

‘‘willful’’ violation has occurred is

influenced by its erroneous conclusion

that a violation of the occupational

exposure limit occurred, its

characterization of the violation as

‘‘willful’’ is flawed.’’

NRC Evaluation

In its Notice, the NRC did not

conclude that the violations in Section

I were willful; rather, the NRC

concluded that only Violation I.A was

willful. In this regard, Section IV.C of

the NRC Enforcement Policy defines

willful violations to encompass not

merely deliberate acts but acts of

careless disregard as well. As part of the

NRC’s evaluation of this event, an

investigation was conducted by the

NRC’s Office of Investigations (OI). That

investigation concluded that the

Licensee’s radiographer willfully failed

to follow the Licensee’s procedures

while operating the radiographic

exposure device. The radiographer, who

was knowledgeable of the requirement

but failed to perform it due to being

‘‘lax,’’ demonstrated careless disregard

for NRC requirements, a condition that

clearly meets the NRC’s definition of a

willful violation.

Given the results of the OI

investigation, the problem with failing

to follow procedures was not isolated.

As noted both in the November 18, 1996

inspection report and during the

subsequent Predecisional Enforcement

Conference, the Licensee’s policy for

performing field audits did not
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Notices 60927

encompass multiple exposures or other

situations where the potential existed

for a radiographer to fail to properly

rotate the selector ring and depress the

plunger. A single radiographic shot was

often used, where this act would be

performed prior to moving the

radiographic exposure device. As such,

the Licensee was unaware of the

problem until it manifested itself in the

exposure event that occurred on

February 27, 1996, although a better

field auditing technique may have

allowed the Licensee to identify the

problem prior to the February event.

Therefore, the Licensee’s arguments

(i.e., lack of deficiencies in its radiation

safety program and the lack of NRC

findings during prior unannounced NRC

inspections) do not alter the NRC’s

conclusion concerning the willful act of

the radiographer.

When questioned by the OI

investigator, approximately 25% of the

Licensee’s radiographers at the Gary,

Indiana facility, including the

radiographer associated with the event,

admitted that on or prior to February 28,

1996, they failed on occasion to rotate

the selector ring from the ‘‘operate’’ to

the ‘‘lock’’ position and failed to depress

the plunger mechanism as required by

the Licensee’s operating procedures.

They stated to the investigator that they

had been ‘‘lax,’’ but that they were

knowledgeable of the requirement. They

also stated that after the memo was

issued by the RSO discussing the event

and the need to follow procedures, they

no longer violated this requirement.

In determining whether the

radiographer willfully failed to lock the

radiographic exposure device, the NRC

based its conclusion on interviews with

the radiographer as noted above. The

Licensee’s belief that the NRC’s

conclusion concerning willfulness was

influenced by whether a violation of the

occupational exposure limit occurred is

simply incorrect.

2. Licensee’s Argument

The Licensee asserts that the NRC

improperly denied identification and

corrective action credit under the terms

of the NRC Enforcement Policy, Section

VI.B.2.b and c, by ignoring essential

facts. The Licensee asserts that while

the incident was identified through an

event, this fact does not preclude

identification credit where the problem

arose from a single incident of

negligence by a radiographer in

violation of well-publicized Conam

safety procedures, where the Licensee’s

quarterly radiation safety compliance

audit program was demonstrably

adequate, and where there were no prior

deficient occurrences to identify the

problem.

In addition, the Licensee argues that

its corrective actions were also prompt

and comprehensive and should result in

credit. The Licensee believes that the

incident was promptly and

comprehensively addressed and

corrected by the Licensee’s RSO through

his analysis of the film badge, his

issuance of a February 29, 1996,

memorandum reminding all Conam

radiographic personnel of the proper

procedure for operating radiographic

exposure devices, his withdrawal of the

radiographer from further radiographic

duties, and the suspension of the

radiographer without pay for one week.

The Licensee disagrees with the

NRC’s position, as described in the

Notice, that credit should not be given

because the Licensee did not confirm

that each radiographer had received the

February 29, 1996, memorandum from

the RSO, nor had the Licensee instituted

any monitoring/auditing program to

evaluate the effectiveness of the

memorandum. The Licensee states that

there is no evidence that the

radiographers did not receive the

memorandum, and that there has been

no repetition of the problem since the

February event’s occurrence. The

Licensee believes that the NRC’s

dismissal of credit for identification and

corrective action ignores the fact that

the February event was the only one of

its kind against a record of no violations

whatsoever during seven prior NRC

inspections, and no that subsequent

violations since the event have been

identified by NRC inspections.

NRC Evaluation

The NRC Enforcement Policy, Section

VI.B.2.b, discusses the criteria to be

considered when deciding if a licensee

should be given credit for actions

related to identification. These

circumstances include: (i) Whether the

problem requiring corrective action was

NRC-identified, licensee-identified, or

revealed through an event; and (ii) for

a problem revealed through an event,

the ease of discovery, the licensee’s selfmonitoring effort, the degree of licensee

initiative in identifying the problem

requiring corrective action, and whether

prior opportunities existed to identify

the problem (Section VI.B.2.b(2)(ii) of

the Enforcement Policy).

The NRC and the Licensee both agree

that the problem requiring corrective

action was revealed through an event.

Therefore, the criteria in Section

VI.B.2.b(2)(ii) of the Enforcement Policy

are applicable in this case. Regarding

the ease of discovery, as well as the

Licensee’s self-monitoring effort, the

radiographer involved in the incident

reported the problem to the Licensee’s

RSO; and the problem was not

identified through any self-monitoring

action of the Licensee’s RSO or

management, such as an audit.

Regarding the degree of licensee

initiative in identifying the problem

requiring corrective action, the

Licensee’s initiative does not deserve

credit, as described below. Regarding

the existence of prior opportunities to

identify the problem, as stated earlier,

the OI investigation revealed that

approximately 25% of the Licensee’s

radiographers and assistant

radiographers at the Gary, Indiana

facility admitted that on or prior to

February 28, 1996, they on occasion

failed to rotate the selector ring from the

‘‘operate’’ to the ‘‘lock’’ position and

failed to depress the plunger mechanism

as required by the Licensee’s operating

procedures. Thus, the problem with

failing to follow procedures was not

isolated. The Licensee performs

quarterly field audits of its

radiographers. As noted in the

inspection report and during the

Predecisional Enforcement Conference,

the Licensee’s policy for performing

field audits did not encompass multiple

exposures or other situations where the

potential existed for a radiographer to

fail to properly rotate the selector ring

and depress the plunger. Therefore,

numerous prior opportunities existed to

identify the problem, yet the problem

was not identified prior to the February

27, 1996 incident. Thus, credit for

identification is not warranted.

The NRC Enforcement Policy, Section

VI.B.2.c, discusses the criteria to be

considered when deciding if a licensee

should be given credit for prompt and

comprehensive corrective actions. These

criteria include: (i) The timeliness of the

corrective action, (ii) the adequacy of

the licensee’s root cause analysis for the

violation, and (iii) the

comprehensiveness of the corrective

action. As stated in the inspection

report, the NRC acknowledges the

Licensee’s prompt action in issuing a

memorandum to all radiation safety

supervisory personnel advising all

radiography staff to complete a full and

accurate survey of the radiographic

exposure device, collimator, guide tube,

and connector after each exposure and

to secure the source assembly in

accordance with the Licensee’s

procedures. However, although the

issuance of the memorandum was

timely, it does not constitute a

comprehensive corrective action.

Specifically, after the Licensee

received the vendor’s report indicating

the radiographer’s dose, the Licensee
60928 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Notices

2For details concerning the Licensee’s evaluation,

see Summary of the Licensee’s Response to

Violation I.C and the NRC’s Evaluation of the

Licensee’s Response to Violation I.C.

did not perform an exact time-motion

study at the scene of the event to

determine the locations of the whole

body, film badge and radiographic

exposure device exit port. Photographs

of the scene that were obtained later did

not include the position of the

radiographer. In addition, the Licensee

could not confirm that each

radiographer had received the

memorandum, nor had the Licensee

instituted any monitoring/auditing

program to evaluate the effectiveness of

the memorandum. The Licensee’s

argument that there is no evidence that

the radiographers did not receive the

memorandum is not persuasive; a

comprehensive corrective action would

ensure that each radiographer had

received, reviewed, and understood the

memorandum, and would monitor the

radiographers’ understanding of and

compliance with the memorandum.

Such comprehensive corrective actions

were not implemented by the Licensee.

Finally, the fact that no violations had

been identified during seven NRC

inspections prior to the February 27,

1996 event, although commendable, is

not relevant as far as credit for

corrective action is concerned. Further,

in accordance with Section VI.B.2.c of

the NRC Enforcement Policy, the

adequacy of a licensee’s corrective

actions is judged at the time of the

enforcement conference, not on the

basis of whether subsequent violations

following the event have been identified

by the NRC. Given the above, the NRC

concludes that while the Licensee took

some timely actions, on balance, such

actions did not address the root cause of

the violations and were not

comprehensive. Thus, credit for prompt

and comprehensive corrective actions is

not warranted.

3. Licensee’s Argument

The Licensee asserts that the NRC

Enforcement Policy should find, at

worst, that the February 27,1996

incident involved two non-willful

Severity Level III violations which, with

appropriate identification and corrective

action credit, do not justify any civil

penalty. The Licensee asserts that to

aggregate the violations cited in Section

I of the Notice and assign a Severity

Level II ‘‘problem’’ to this collection is

not consistent with the NRC’s

Enforcement Policy published in 60 FR

34381 (June 30, 1995). The Licensee

believes that the NRC’s Notice

compounds that error by determining

that the Severity Level II problem was

willful, and on that basis justifying a

100% escalation of the $8,000 Severity

Level II base penalty.

NRC Evaluation

As described above, the NRC has

determined that Violation I.A was

willful, that Violations I.A, I.B, and I.C

occurred as described in the inspection

report, and that credit for identification

and corrective action is not warranted.

The NRC Enforcement Policy, Section

IV.A, states, in part, that the purpose of

aggregating violations is to focus the

licensee’s attention on the fundamental

underlying causes for which

enforcement action appears warranted

and to reflect the fact that several

violations with a common cause may be

more significant collectively than

individually and may, therefore,

warrant a more substantial enforcement

action. As noted in the Notice, in

consideration of the willfulness

involved, the relationship of these

violations to a single incident, and the

fact that two safety barriers were

breached, the violations are of very

significant regulatory concern.

Therefore, consistent with Section IV.A

of the Enforcement Policy, the

violations in Section I of the Notice

were combined to reflect that,

collectively, they are more significant

than individually and, therefore,

warrant a more substantial enforcement

action.

As to the Licensee’s argument

concerning escalation of the $8,000 base

penalty, the NRC did not escalate the

civil penalty on the basis of a willful

violation. The base amount for a

Severity Level II problem is $8,000.

Credit was not warranted for the

identification and corrective action

factors. Therefore, in accordance with

the civil penalty assessment process

described in Section VI.b.2, the civil

penalty for the Severity Level II problem

is twice the base amount (i.e., $16,000).

NRC Conclusion

The NRC concludes that the Licensee

did not provide an adequate basis for

withdrawing Violations I.B and I.C, for

mitigating the severity level of

Violations I.A, I.B, and I.C in the

aggregate, or for mitigating the civil

penalty associated with Violations I.A,

I.B, and I.C. Therefore, the proposed

civil penalty in the amount of $16,000

should be imposed by order.

Appendix B Evaluation of Violations

Not Assessed a Civil Penalty

Of the violations not assessed a civil

penalty, the Licensee admitted violation

II.B and denied Violation II.A.

Restatement of Violation II.A

II.A 10 CFR 20.2203(a)(2)(i) requires,

in part, that a licensee submit a written

report within 30 days after learning of

a dose in excess of the occupational

dose limits for adults as defined in 10

CFR 20.1201.

Contrary to the above, on April 11,

1996, the Licensee learned of an event

that caused an adult radiographer to

receive a total effective dose equivalent

of more than 5 rems total effective dose

equivalent and did not submit a written

report within 30 days as required.

Summary of Licensee’s Response to

Violation II.A

The Licensee, in its response, denies

Violation II.A and states that, because

the radiographer was not exposed to a

dose in excess of 5 rems, total effective

dose equivalent, no reporting obligation

arose under applicable regulations.

NRC Evaluation of Licensee’s Response

to Violation II.A

The specific issue raised by Violation

II.A was whether the Licensee was

required to submit a report to the NRC

after learning of a dose in excess of the

occupational dose limits for adults as

defined in 10 CFR 20.1201. In this case,

the Licensee’s evaluation of the

circumstances did not appear to be

adequate in that the Licensee did not

complete an exact time/motion study at

the scene of the event to determine the

locations of the whole body, film badge,

and radiography exposure device. As a

result, the Licensee did not conclude

that an exposure in excess of the dose

limits occurred.2

By letter dated June 23, 1997, the

Licensee did submit the report required

by 10 CFR 20.2203(a)(2)(i), but solely on

the basis that the NRC’s letter

transmitting the Notice of Violation and

Proposed Imposition of Civil Penalty

specifically stated that the Licensee was

required to make such a report. As

noted above, the Licensee still contends

that an exposure in excess of regulatory

limits did not occur based on the

Licensee’s unapproved methodology it

used to compute the TEDE.

Given that the Licensee did not learn

that the radiographer’s exposure was in

excess of regulatory limits, and that,

after being informed by the NRC of the

radiographer’s exposure, the Licensee

submitted a report per the requirements

of 10 CFR 20.2203(a)(2)(i), the NRC

concludes that Violation II.A should be

withdrawn.

NRC Conclusion

The NRC staff concludes that the

Licensee provided an adequate basis for
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Notices 60929

withdrawing Violation II.A. Therefore,

Violation II.A should be withdrawn.

[FR Doc. 97–29886 Filed 11–12–97; 8:45 am]

BILLING CODE 7590–01–P

PENSION BENEFIT GUARANTY

CORPORATION

Proposed Submission of Information

Collection for OMB Review; Comment

Request; Allocating Unfunded Vested

Benefits

AGENCY: Pension Benefit Guaranty

Corporation.

ACTION: Notice of intention to request

extension of OMB approval.

SUMMARY: The Pension Benefit Guaranty

Corporation (‘‘PBGC’’) intends to

request that the Office of Management

and Budget (‘‘OMB’’) extend approval,

under the Paperwork Reduction Act, of

a collection of information in its

regulation on Allocating Unfunded

Vested Benefits (29 CFR Part 4211)

(OMB control number 1212–0035;

expires February 28, 1998). This notice

informs the public of the PBGC’s intent

and solicits public comment on the

collection of information.

DATES: Comments should be submitted

by January 12, 1998.

ADDRESSES: Comments may be mailed to

the Office of the General Counsel, suite

340, Pension Benefit Guaranty

Corporation, 1200 K Street, NW.,

Washington, DC 20005–4026, or

delivered to that address between 9 a.m.

and 4 p.m. on business days. Written

comments will be available for public

inspection at the PBGC’s

Communications and Public Affairs

Department, suite 240 at the same

address, between 9 a.m. and 4 p.m. on

business days.

FOR FURTHER INFORMATION CONTACT:

Deborah C. Murphy, Attorney, Office of

the General Counsel, Pension Benefit

Guaranty Corporation, 1200 K Street,

NW., Washington, DC 20005–4026, 202–

326–4024. (For TTY and TDD, call 800–

877–8339 and request connection to

202–326–4024).

SUPPLEMENTARY INFORMATION: Section

4211(c)(5)(A) of the Employee

Retirement Income Security Act of 1974

(‘‘ERISA’’) requires the PBGC to

prescribe by regulation a procedure

whereby multiemployer pension plans

can change the way they allocate

unfunded vested benefits to

withdrawing employers, subject to

PBGC approval. Approval of a change is

to be based on a determination that the

change will not significantly increase

the risk of loss to plan participants or

the PBGC.

The PBGC’s regulation on Allocating

Unfunded Vested Benefits (29 CFR Part

4211) includes, in § 4211.22, rules for

requesting the PBGC’s approval of an

amendment to a plan’s allocation

method. Section 4211.22(d) prescribes

information that the PBGC needs to

identify the plan and evaluate the risk

of loss, if any, posed by the amendment

(and, hence, determine whether it

should approve the amendment).

Section 4211.22(e) requires the

submission of other information that the

PBGC may need to review the

amendment. (The regulation may be

accessed on the PBGC’s home page at

http://www.pbgc.gov.)

The collection of information under

the regulation has been approved by

OMB under control number 1212–0035

through February 28, 1998. The PBGC

intends to request that OMB extend its

approval for another three years. The

PBGC estimates that it receives five

submissions from plan sponsors

annually under the regulation; that

virtually all submissions are prepared

by outside consultants; that the total

annual hour burden of engaging the

services of such consultants is one hour;

and that the total annual cost burden of

having the submissions prepared is

$1,575.

The PBGC is soliciting public

comments to—

• Evaluate whether the proposed

collection of information is necessary

for the proper performance of the

functions of the agency, including

whether the information will have

practical utility;

• Evaluate the accuracy of the

agency’s estimate of the burden of the

proposed collection of information,

including the validity of the

methodology and assumptions used;

• Enhance the quality, utility, and

clarity of the information to be

collected; and

• Minimize the burden of the

collection of information on those who

are to respond, including through the

use of appropriate automated,

electronic, mechanical, or other

technological collection techniques or

other forms of information technology,

e.g., permitting electronic submission of

responses.

Issued in Washington, DC, this 7th day of

November, 1997.

David M. Strauss,

Executive Director, Pension Benefit Guaranty

Corporation.

[FR Doc. 97–29880 Filed 11–12–97; 8:45 am]

BILLING CODE 7708–01–P

SECURITIES AND EXCHANGE

COMMISSION

[Release No. 35–26774]

Filings Under the Public Utility Holding

Company Act of 1935, as amended

(‘‘Act’’)

November 6, 1997.

Notice is hereby given that the

following filing(s) has/have been made

with the Commission pursuant to

provisions of the Act and rules

promulgated thereunder. All interested

persons are referred to the application(s)

and/or declaration(s) for complete

statements of the proposed

transaction(s) summarized below. The

application(s) and/or declaration(s) and

any amendments thereto is/are available

for public inspection through the

Commission’s Office of Public

Reference.

Interested persons wishing to

comment or request a hearing on the

application(s) and/or declaration(s)

should submit their views in writing by

December 1, 1997, to the Secretary,

Securities and Exchange Commission,

Washington, D.C. 20549, and serve a

copy on the relevant applicant(s) and/or

declarant(s) at the address(es) specified

below. Proof of service (by affidavit or,

in case of an attorney at law, by

certificate) should be filed with the

request. Any request for hearing shall

identify specifically the issues of fact or

law that are disputed. A person who so

requests will be notified of any hearing,

if ordered, and will receive a copy of

any notice or order issued in the matter.

After said date, the application(s) and/

or declaration(s), as filed or as amended,

may be granted and/or permitted to

become effective.

New England Electric System, et al. (70–

9143); Notice of Proposal to Amend

Articles of Incorporation and Authorize

Registered Holding Company to Acquire

Preferred Stock of Utility Subsidiaries;

Order Authorizing Solicitation of

Proxies

New England Electric System

(‘‘NEES’’), a registered holding

company, and its wholly-owned public

utility subsidiaries, New England Power

Company (‘‘the Power Company’’),

Massachusetts Electric Company (‘‘Mass

Electric’’), and the Narragansett Electric

Company (‘‘Narragansett’’), all located at

25 Research Drive, Westborough,

Massachusetts 01582, have filed an

application-declaration under sections

6(a), 7, 9(a), 10, 12(c), 12(d) and 12(e) of