26056 Federal Register / Vol. 60, No. 94 / Tuesday, May 16, 1995 / Notices

[Docket No. 030–20836 License No. 25–

21479–01 EA 95–063]

Mattingly Testing Services, Inc. Great

Falls, Montana; Order Modifying

License (Effective Immediately)

Mattingly Testing Services, Inc., (MTS

or Licensee) is the holder of Byproduct

Material License No. 25–21479–01

issued by the Nuclear Regulatory

Commission (NRC or Commission)

pursuant to 10 CFR parts 30 and 34. The

license authorizes the licensee to

possess and utilize sealed sources of

byproduct material in various

radiographic exposure devices for the

purpose of conducting industrial

radiography. The license was due to

expire on August 31, 1994, but has

remained in effect based on the

licensee’s timely submission of a

renewal application dated July 28, 1994.

II

From January 4 to January 24, 1995,

an NRC inspection and NRC

investigation were conducted to

determine compliance with radiation

safety requirements and to determine

whether licensee officials and

employees had deliberately violated

certain NRC requirements. As described

in detail in NRC Inspection Report No.

030–20836/95–01, issued on February

28, 1995, the NRC staff found that MTS

radiography personnel had violated a

significant number of NRC requirements

when performing radiography on a

pipeline near Miles City, Montana. The

inspection and preliminary

investigation found, in part, that some

of the violations were deliberate in that

the President/Radiation Safety Officer

and the Vice President/Assistant

Radiation Safety Officer, knew that MTS

personnel were violating NRC

requirements and expressed the belief

that work could be performed safely

under the circumstances without

meeting these requirements. The

deliberate violations included, in part,

not performing surveys as prescribed by

10 CFR 34.43(b), not posting

radiography areas as required by 10 CFR

34.43, and not securing sealed sources

in radiographic exposure devices as

required by 10 CFR 34.22(a).

Further, the inspection and

investigation found that MTS

management deliberately allowed a

newly hired assistant radiographer to

begin working without meeting all of

the NRC’s training requirements in

violation of 10 CFR 34.31(b), that an

MTS radiographer had deliberately

failed to supervise this assistant

radiographer during radiography

operations as required by 10 CFR 34.44,

that MTS management had deliberately

not completed all field audits of

radiography personnel as required by 10

CFR 34.11(d)(1), and that MTS

management had deliberately failed to

amend its NRC license to reflect the

establishment of a new office and

storage location for NRC-licensed

material in Billings, Montana as

required by License Condition 17. These

and other violations of NRC

requirements, which were the subject of

a March 7, 1995 transcribed

enforcement conference at which MTS’s

President and Vice President admitted

to the deliberate nature of the violations,

are described in a Notice of Violation

and Proposed Imposition of Civil

Penalties-$15,500 issued concurrently

with this Order.

Based on the above, it appears that the

Licensee has willfully violated NRC

requirements. The NRC cannot tolerate

a situation in which a licensee elects to

violate requirements that are designed

to assure the safety of both radiography

personnel and unsuspecting members of

the public. Collectively, these violations

amount to a breakdown in the control of

licensed activities and also demonstrate

a lack of effective oversight of

radiographic operations by the radiation

safety officer and his assistant, all of

which is made more significant by the

deliberate nature of many of the

violations.

Consequently, without additional

actions to monitor the performance of

the Licensee, I lack the requisite

reasonable assurance that the Licensee’s

current and future operations under

License No. 25–21479–01 will be

conducted in compliance with the

Commission’s requirements and that the

health and safety of the public,

including the Licensee’s employees,

will be protected. Therefore, the public

health, safety and interest require that

License No. 25–21479–01 be modified

to require that MTS retain the services

of an independent auditor to conduct an

initial audit of MTS’s radiation safety

program and to conduct semiannual

audits for two years following the initial

audit. Furthermore, pursuant to 10 CFR

2.202, I find that the significance of the

violations and conduct described above

is such that public health, safety, and

interest require that this Order be

immediately effective.

IV

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 license no. 25–21479–

01 is modified as follows:

A. The Licensee shall retain the

services of an independent individual or

organization (consultant) to perform an

initial assessment of the Licensee’s

radiation safety program and

semiannual audits thereafter for a

period of two years from the date of the

initial audit such that a total of five (5)

audits will be conducted.

B. Within 30 days of the date of this

Order, the Licensee shall submit to the

Regional Administrator, NRC Region IV,

for NRC review and approval, the name

and qualifications of the consultant it

proposes to use in conducting these

audits and the general audit plan that

complies with requirements set forth in

Paragraphs IV.C, IV.D and IV.E. The

consultant shall be independent of the

Licensee’s organization and shall be

experienced, or qualified, in evaluating

the effectiveness of the management and

implementation of a radiation safety

program for radiographic operations.

C. Within 60 days of the date of NRC’s

approval of a consultant, the Licensee

shall submit to the NRC Regional

Administrator, Region IV, the results of

the consultant’s initial assessment.

Thereafter, the Licensee shall assure

that the consultant performs four (4)

semiannual audits to be completed

approximately every six months from

the completion date of the initial audit.

The Licensee shall submit the results of

the four semiannual audits within 30

days of the date they are provided to the

Licensee in writing. With the

submission of each audit report, the

Licensee shall describe any corrective

actions it is taking in response to audit

findings or recommendations.

D. The initial audit shall: (1) Evaluate

the effectiveness of the Licensee’s

management system for assuring

compliance with all NRC requirements,

including the adequacy of the Licensee’s

program for training radiography

personnel and the adequacy of its

radiography procedures; (2) evaluate the

adequacy of the Licensee’s corrective

actions for the violations that were

identified by the NRC in the Notice of

Violation issued concurrently with this

Order; (3) make recommendations as

necessary for improvements in

management oversight of licensed

activities or corrective actions to comply

with NRC requirements; and (4) include

unannounced field audits (i.e., observe

radiography operations) of at least 50

percent of Licensee personnel who are

authorized at the time of the audit to be

performing radiography, including

personnel from both the Great Falls and

Billings offices.

E. At a minimum, each subsequent

semiannual audit shall:
Federal Register / Vol. 60, No. 94 / Tuesday, May 16, 1995 / Notices 26057

1 15 U.S.C. 78s(b)(1) (1988).

2Securities Exchange Act Release No. 33900

(April 12, 1994), 59 FR 18585. SPDRs are PDRs

based on the S&P 500 Composite Stock Price Index.

3Securities Exchange Act Release No. 31794

(January 29, 1993), 58 FR 7272.

4Securities Exchange Act Release No. 35534

(March 24, 1995), 60 FR 16686.

1. Assess the effectiveness of the

Licensee’s corrective actions for

previous audit findings as well as any

violations identified by the NRC in

subsequent inspections;

2. Assess the overall effectiveness of

the Licensee’s management oversight of

licensed activities to assure compliance

with all NRC requirements;

3. Make recommendations as

necessary for improvements in

management oversight or corrective

actions to restore compliance with NRC

requirements; and

4. Perform unannounced field audits

of at least 50 percent of the radiography

personnel authorized to perform

radiography at the time of the audit,

including some personnel from both the

Great Falls and Billings offices.

The Regional Administrator, Region

IV, may, in writing, relax or rescind this

order upon demonstration by the

Licensee of good cause.

V

In accordance with 10 CFR 2.202, the

Licensee must, and any other person

adversely affected by this Order may,

submit an answer to this Order, and

may request a hearing on this Order,

within 20 days of the date of this Order.

The answer may consent to this Order.

Unless the answer consents to this

Order. the answer shall, in writing and

under oath of affirmation, specifically

admit or deny each allegation or charge

made in this order and set forth the

matters of fact and law on which the

Licensee or other person adversely

relies and the reasons as to why the

Order should not have been issued. Any

answer or request for a hearing shall be

submitted to the Secretary, U.S. Nuclear

Regulatory Commission, ATTN: Chief,

Docketing and Service Section,

Washington, D.C. 20555. Copies of

hearing request also should be sent to

the Director, Office of the Enforcement,

U.S. Nuclear Regulatory Commission,

Washington, D.C. 20555, to the

Assistant General Counsel for Hearings

and Enforcement at the same address, to

the Regional Administrator, NRC Region

IV, 611 Ryan Plaza Drive, Suite 400,

Arlington, Texas 76011, and to the

Licensee if the hearing request is by a

person other than the Licensee. If a

person other than the Licensee requests

a hearing, that person shall set forth

with particularly the manner in which

his interest is adversely affected by this

Order and shall address the criteria set

forth in 10 CFR 2.714(d).

If a hearing is requested by the

Licensee or 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 Order

should be sustained.

Pursuant to 10 CFR 2.202(c)(2)(i), the

Licensee, or any other person adversely

affected by this Order, may, in addition

to demanding a hearing, at the time the

answer is filed or sooner, move 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.

In the absence of any request for

hearing, the provisions specified in

Section IV above shall be final 20 days

from the date of this Order without

further order or proceedings. AN

ANSWER OR A REQUEST FOR

HEARING SHALL NOT STAY THE

IMMEDIATE EFFECTIVENESS OF THIS

ORDER.

Dated at Rockville, Maryland, this 5th day

of May 1995.

For the Nuclear Regulatory Commission.

Hugh L. Thompson, Jr.,

Deputy Executive Director for Nuclear

Materials Safety, Safeguards and Operations

Support.

[FR Doc. 95–11988 Filed 5–15–95; 8:45 am]

BILLING CODE 7590–01–M

SECURITIES AND EXCHANGE

COMMISSION

[Release No. 34–35689; File No. SR–Amex–

95–16]

Self-Regulatory Organizations; Notice

of Filing and Immediate Effectiveness

of Proposed Rule Change by the

American Stock Exchange, Inc.,

Relating to Minimum Fractions of

Trading in Standard & Poor’s MidCap

400 Depositary Receipts

May 8, 1995.

Pursuant to Section 19(b)(1) of the

Securities Exchange Act of 1934

(‘‘Act’’),1 notice is hereby given that on

May 3, 1995, the American Stock

Exchange, Inc. (‘‘Amex’’ or ‘‘Exchange’’)

filed with the Securities and Exchange

Commission (‘‘Commission’’) the

proposed rule change as described in

Items I, II, and III below, which Items

have been prepared by the selfregulatory organization. The

Commission is publishing this notice to

solicit comments on the proposed rule

change from interested persons.

I. Self-Regulatory Organization’s

Statement of the Terms of Substance of

the Proposed Rule Change

The Amex proposes to amend its Rule

127, Commentary .01 to provide that the

minimum fractional change applicable

to trading of Standard & Poor’s MidCap

400 Depositary Receipts (‘‘MidCap

SPDRs’’) shall be 1⁄64 of $1.00.

II. Self-Regulatory Organization’s

Statement of the Purpose of, and

Statutory Basis for, the Proposed Rule

Change

In its filing with the Commission, the

self-regulatory organization included

statements concerning the purpose of

and basis for the proposed rule change

and discussed any comments it received

on the proposed rule change. The text

of these statements may be examined at

the places specified in Item IV below.

The self-regulatory organization has

prepared summaries, set forth in

Sections (A), (B) and (C) below, of the

most significant aspects of such

statements.

(A) Self-Regulatory Organization’s

Statement of the Purpose of, and

Statutory Basis for, the Proposed Rule

Change

Amex Rule 127 provides parameters

for the minimum fractional change for

dealings in securities on the Exchange.

Commentary .01 to Rule 127 provides

that for securities listed under Amex

Rule 1000 et seq., which relate to

Portfolio Depositary Receipts (‘‘PDRs’’),

the minimum fractional change shall be

1⁄32 of $1.00. Since April 1994, Standard

and Poor’s Depositary Receipts

(‘‘SPDRs’’), which have been trading on

the Exchange since January 1993, have

had a minimum fractional change of 1⁄64

of $1.00.2

In initially approving trading of PDRs

in 1⁄32’s, the Commission stated that

such trading would enhance market

liquidity and should promote more

accurate pricing, tighter quotations, and

reduced price fluctuations. The

Commission also noted that such

trading should allow customers to

receive the best possible execution of

their transactions in these securities.3

The Commission has approved

Exchange listing and trading of S&P

MidCap 400 Depositary Receipts with a

minimum fractional change of 1⁄32 of

$1.00.4 The Exchange, however,