11772 Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Notices 

without further order or proceedings. If 

an extension of time for requesting a 

hearing has been approved, the 

provisions specified in Section V shall 

be final when the extension expires if a 

hearing request has not been received. A 

request for hearing shall not stay the 

immediate effectiveness of this order. 

For the nuclear regulatory commission. 

Dated this 6th day of March 2009. 

Elmo E. Collins, 

Regional Administrator. 

[FR Doc. E9–5999 Filed 3–18–09; 8:45 am] 

BILLING CODE 7590–01–P 

NUCLEAR REGULATORY 

COMMISSION 

[IA–08–055; NRC–2009–0120] 

In the Matter of Mr. Mark M. Ficek; 

Confirmatory Order (Effective 

Immediately) 

I 

Mr. Mark M. Ficek is the President of 

Mattingly Testing Services, Inc., 

(Mattingly) in Molt, Montana. Mattingly 

is the holder of Materials License No. 

25–21479–01 issued by the Nuclear 

Regulatory Commission (NRC or 

Commission) pursuant to 10 CFR Part 

34, last amended on September 11, 

2008, and due to expire on February 28, 

2016. The license authorizes Mattingly 

to possess and use byproduct material 

for industrial radiographic operations in 

NRC jurisdiction, and in areas of 

exclusive Federal jurisdiction within 

Agreement States. Mattingly’s main 

office is located in Molt, Montana. 

This Confirmatory Order is the result 

of an agreement reached during an 

alternative dispute resolution (ADR) 

mediation session conducted on 

February 5, 2009, at the NRC Region IV 

offices in Arlington, Texas. 

II 

On November 5, 2007, the NRC Office 

of Investigations began an investigation 

(Office of Investigations Case No. 4– 

2008–009) to determine, in part, if Mr. 

Ficek violated 10 CFR 30.10. Based on 

the evidence developed during its 

investigation, one apparent violation 

was identified. The results of the 

investigation, completed on September 

12, 2008, were sent to Mr. Ficek in a 

letter dated December 15, 2008. In 

response to NRC’s December 15, 2008, 

letter, Mr. Ficek requested ADR to 

resolve this issue. 

On February 5, 2009, the NRC and Mr. 

Ficek met in an ADR session mediated 

by a professional mediator, arranged 

through Cornell University’s Institute on 

Conflict Resolution. ADR is a process in 

which a neutral mediator with no 

decisionmaking authority assists the 

parties in reaching an agreement on 

resolving any differences regarding the 

dispute. This confirmatory order is 

issued pursuant to the agreement 

reached during the ADR process. 

III 

In response to the NRC’s offer, Mr. 

Ficek requested use of the NRC ADR 

process to resolve differences he had 

with the NRC. During that ADR session, 

a preliminary settlement agreement was 

reached. The elements of the agreement 

consisted of the following: 

Pursuant to the Nuclear Regulatory 

Commission Office of Enforcement’s 

ADR process, the following are the 

terms and conditions agreed upon in 

principle by Mr. Mark M. Ficek, and the 

NRC relating to NRC Investigation 

Report No. 4–2008–009 (IA–08–055) 

characterized by the NRC to Mr. Ficek 

in a letter dated December 15, 2008. 

Whereas, NRC’s investigation completed 

September 12, 2008, identified one 

apparent violation of 10 CFR 30.10; 

Whereas, NRC acknowledges that this is 

the first apparent violation identified 

by the NRC concerning Mr. Ficek 

during his tenure as RSO and 

President of Mattingly Testing 

Services, Inc; 

Whereas, Mr. Ficek does not agree that 

a violation of 10 CFR 30.10 occurred; 

Whereas, Mr. Ficek and the NRC agree 

to disagree on whether a violation of 

10 CFR 30.10 occurred; 

Whereas, these terms and conditions 

shall not be binding on either party 

until memorialized in a confirmatory 

order issued by the Nuclear 

Regulatory Commission to Mr. Ficek 

relating to this matter; 

Therefore, the parties agree to the 

following terms and conditions: 

1. Mr. Mark Ficek agrees to refrain 

from engaging in licensed activities for 

a period of two years. Therefore, Mr. 

Mark Ficek is prohibited for two years 

from the date of this Order from 

engaging in NRC-licensed activities. 

NRC-licensed activities are those 

activities that are conducted pursuant to 

a specific or general license issued by 

the NRC, including, but not limited to, 

those activities of Agreement State 

licensees conducted pursuant to the 

authority granted by 10 CFR 150.20. 

2. For a period of one year after the 

two year period of prohibition has 

expired, Mr. Ficek shall, within 20 days 

of his becoming involved in NRClicensed activities, as defined in 

Paragraph 1 above, provide notice to the 

Director, Office of Enforcement, U.S. 

Nuclear Regulatory Commission, 

Washington, DC 20555–0001, of the 

name, address, and telephone number of 

the employer or the entity where he is, 

or will be, involved in the NRC-licensed 

activities. In the notification, Mr. Ficek 

shall include a statement of his 

commitment to compliance with 

regulatory requirements and the basis 

why the Commission should have 

confidence that he will now comply 

with applicable NRC requirements. 

3. The NRC agrees not to pursue any 

further enforcement action against Mr. 

Ficek in connection with the apparent 

violation identified in the NRC’s 

December 15, 2008, letter to him. 

On March 5, 2009, Mr. Ficek 

consented to issuing this Order with the 

commitments, as described in Section V 

below. Mr. Ficek further agreed that this 

Order is to be effective upon issuance 

and that he has waived his right to a 

hearing. 

IV 

Since Mr. Ficek has agreed to take 

additional actions to address NRC 

concerns, as set forth in Item III above, 

the NRC has concluded that its concerns 

can be resolved through issuance of this 

Order. 

I find that Mr. Ficek’s commitments 

as set forth in Section V are acceptable 

and necessary and conclude that with 

these commitments the public health 

and safety are reasonably assured. In 

view of the foregoing, I have determined 

that public health and safety require 

that Mr. Ficek’s commitments be 

confirmed by this Order. Based on the 

above and Mr. Ficek’s consent, this 

Order is immediately effective upon 

issuance. 

V 

Accordingly, pursuant to Sections 81, 

161b, 161i, 161o, 182 and 186 of the 

Atomic Energy Act of 1954, as amended, 

and the Commission’s regulations in 10 

CFR 2.202 and 10 CFR Parts 30 and 34, 

it is hereby ordered, effective 

immediately, that: 

1. Mr. Mark Ficek agrees to refrain 

from engaging in licensed activities for 

a period of two years. Therefore, Mr. 

Mark Ficek is prohibited for two years 

from the date of this Order from 

engaging in NRC-licensed activities. 

NRC-licensed activities are those 

activities that are conducted pursuant to 

a specific or general license issued by 

the NRC, including, but not limited to, 

those activities of Agreement State 

licensees conducted pursuant to the 

authority granted by 10 CFR 150.20. 

2. For a period of one year after the 

two year period of prohibition has 

expired, Mr. Ficek shall, within 20 days 

of his becoming involved in NRCVerDate Nov<24>2008 17:17 Mar 18, 2009 Jkt 217001 PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 E:\FR\FM\19MRN1.SGM 19MRN1

sroberts on PROD1PC70 with NOTICES
Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Notices 11773 

licensed activities, as defined in 

Paragraph 1 above, provide notice to the 

Director, Office of Enforcement, U.S. 

Nuclear Regulatory Commission, 

Washington, DC 20555–0001, of the 

name, address, and telephone number of 

the employer or the entity where he is, 

or will be, involved in the NRC-licensed 

activities. In the notification, Mr. Ficek 

shall include a statement of his 

commitment to compliance with 

regulatory requirements and the basis 

why the Commission should have 

confidence that he will now comply 

with applicable NRC requirements. 

The Regional Administrator, NRC 

Region IV, may, in writing, relax or 

rescind any of the above conditions 

upon demonstration by Mr. Ficek of 

good cause. 

VI 

Any person adversely affected by this 

Confirmatory Order, other than Mr. 

Ficek, may request a hearing within 20 

days of its issuance. 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 

directed to the Director, Office of 

Enforcement, U.S. Nuclear Regulatory 

Commission, Washington, DC 20555– 

0001, and include a statement of good 

cause for the extension. 

A request for a hearing must be filed 

in accordance with the NRC E-Filing 

rule, which the NRC promulgated in 

August 2007, 72 FR 49139 (Aug. 28, 

2007). The E-Filing process requires 

participants to submit and serve 

documents over the internet or, in some 

cases, to mail copies on electronic 

optical storage media. Participants may 

not submit paper copies of their filings 

unless they seek a waiver in accordance 

with the procedures described below. 

To comply with the procedural 

requirements associated with E-Filing, 

at least five (5) days prior to the filing 

deadline the requestor must contact the 

Office of the Secretary by e-mail at 

HEARINGDOCKET@NRC.GOV, or by 

calling (301) 415–1677, to request (1) a 

digital ID certificate, which allows the 

participant (or its counsel or 

representative) to digitally sign 

documents and access the E-Submittal 

server for any NRC proceeding in which 

it is participating; and/or (2) creation of 

an electronic docket for the proceeding 

(even in instances when the requestor 

(or its counsel or representative) already 

holds an NRC-issued digital ID 

certificate). Each requestor will need to 

download the Workplace Forms 

Viewer TM to access the Electronic 

Information Exchange (EIE), a 

component of the E-Filing system. The 

Workplace Forms Viewer TM is free and 

is available at http://www.nrc.gov/sitehelp/e-submittals/install-viewer.html. 

Information about applying for a digital 

ID certificate also is available on NRC’s 

public Web site at http://www.nrc.gov/ 

site-help/e-submittals/applycertificates.html. 

Once a requestor has obtained a 

digital ID certificate, had a docket 

created, and downloaded the EIE 

viewer, it can then submit a request for 

a hearing through EIE. Submissions 

should be in Portable Document Format 

(PDF) in accordance with NRC guidance 

available on the NRC public Web site at 

http://www.nrc.gov/site-help/esubmittals.html. A filing is considered 

complete at the time the filer submits its 

document through EIE. To be timely, 

electronic filings must be submitted to 

the EIE system no later than 11:59 p.m. 

Eastern Time on the due date. Upon 

receipt of a transmission, the E-Filing 

system time-stamps the document and 

sends the submitter an e-mail notice 

confirming receipt of the document. The 

EIE system also distributes an e-mail 

notice that provides access to the 

document to the NRC Office of the 

General Counsel and any others who 

have advised the Office of the Secretary 

that they wish to participate in the 

proceeding, so that the filer need not 

serve the document on those 

participants separately. Therefore, any 

others who wish to participate in the 

proceeding (or their counsel or 

representative) must apply for and 

receive a digital ID certificate before a 

hearing request is filed so that they may 

obtain access to the document via the EFiling system. 

A person filing electronically may 

seek assistance through the ‘‘Contact 

Us’’ link located on the NRC Web site 

at http://www.nrc.gov/site-help/esubmittals.html or by calling the NRC 

technical help line, which is available 

between 8:30 a.m. and 4:15 p.m., 

Eastern Time, Monday through Friday. 

The electronic filing Help Desk can be 

contacted by telephone at 1–866–672– 

7640 or by e-mail at 

MSHD.Resource@nrc.gov. 

Participants who believe that they 

have good cause for not submitting 

documents electronically must file a 

motion, in accordance with 10 CFR 

2.302(g), with their initial paper filing 

requesting authorization to continue to 

submit documents in paper format. 

Such filings must be submitted by (1) 

first class mail addressed to the Office 

of the Secretary of the Commission, U.S. 

Nuclear Regulatory Commission, 

Washington, DC 20555–0001, Attention: 

Rulemaking and Adjudications Staff; or 

(2) courier, express mail, or expedited 

delivery service to the Office of the 

Secretary, Sixteenth Floor, One White 

Flint North, 11555 Rockville, Pike, 

Rockville, Maryland 20852, Attention: 

Rulemaking and Adjudications Staff. 

Participants filing a document in this 

manner are responsible for serving the 

document on all other participants. 

Filing is considered complete by firstclass mail as of the time of deposit in 

the mail, or by courier, express mail, or 

expedited delivery service upon 

depositing the document with the 

provider of the service. 

Documents submitted in adjudicatory 

proceedings will appear in NRC’s 

electronic hearing docket which is 

available to the public at http:// 

ehd.nrc.gov/EHD_Proceeding/home.asp, 

unless excluded pursuant to an order of 

the Commission, an Atomic Safety and 

Licensing Board, or a Presiding Officer. 

Participants are requested to not include 

personal privacy information, such as 

social security numbers, home 

addresses, or home phone numbers in 

their filings. With respect to copyrighted 

works, except for limited excerpts that 

serve the purpose of the adjudicatory 

filings and would constitute a Fair Use 

application, participants are requested 

not to include copyrighted materials in 

their works. 

If a person other than Mr. Ficek 

requests a hearing, that person shall set 

forth with particularity the manner in 

which his interest is adversely affected 

by this Order and shall address the 

criteria set forth in 10 CFR 2.309(d) and 

(f). 

If the hearing is requested by a person 

whose interest is adversely affected, the 

Commission will issue an Order 

designating the time and place of any 

hearing. If a hearing is held, the issue to 

be considered at such hearing shall be 

whether this Confirmatory Order should 

be sustained. 

In the absence of any request for 

hearing, or written approval of an 

extension of time in which to request a 

hearing, the provisions specified in 

Section V above shall be final 20 days 

from the date of this Order without 

further order or proceedings. If an 

extension of time for requesting a 

hearing has been approved, the 

provisions specified in Section V shall 

be final when the extension expires if a 

hearing request has not been received. A 

request for hearing shall not stay the 

immediate effectiveness of this order. 

Dated this 6th day of March 2009. 

For the Nuclear Regulatory Commission. 

Elmo E. Collins, 

Regional Administrator. 

[FR Doc. E9–5998 Filed 3–18–09; 8:45 am] 

BILLING CODE 7590–01–P 


sroberts on PROD1PC70 with NOTICES