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498 PART 820PROCEDURAL RULES FOR DOE NUCLEAR ACTIVITIES

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498 PART 820PROCEDURAL RULES FOR DOE NUCLEAR ACTIVITIES Powered By Docstoc
					                                                                           § 810.14                                                               10 CFR Ch. III (1–1–10 Edition)

                                                                           Division, NN–43, Office of Arms Control                   the regulations in this part, must re-
                                                                           and Nonproliferation.                                     quest specific authorization by July 25,
                                                                           [51 FR 44574, Dec. 10, 1986, as amended at 58
                                                                                                                                     2000 but may continue their activities
                                                                           FR 39639, July 16, 1993; 65 FR 16128, Mar. 27,            until DOE acts on the request.
                                                                           2000]                                                     [65 FR 16128, Mar. 27, 2000]
                                                                           § 810.14 Additional information.
                                                                              The Department of Energy may at
                                                                                                                                        PART 820—PROCEDURAL RULES
                                                                           any time require a person engaging in                        FOR DOE NUCLEAR ACTIVITIES
                                                                           any generally or specifically author-
                                                                           ized activity to submit additional in-                                  Subpart A—General
                                                                           formation.                                                Sec.
                                                                                                                                     820.1 Purpose and scope.
                                                                           § 810.15 Violations.                                      820.2 Definitions.
                                                                              (a) The Atomic Energy Act provides                     820.3 Separation of functions.
                                                                           that:                                                     820.4 Conflict of interest.
                                                                              (1) Permanent or temporary injunc-                     820.5 Service.
                                                                           tions or restraining orders may be                        820.6 Computation and extension of time.
                                                                           granted to prevent any person from                        820.7 Questions of policy or law.
                                                                           violating any provision of the Atomic                     820.8 Evidentiary matters.
                                                                           Energy Act or its implementing regula-                    820.9 Special assistant.
                                                                           tions.                                                    820.10 Office of the docketing clerk.
                                                                              (2) Any person convicted of violating                  820.11 Information requirements.
                                                                                                                                     820.12 Classified, confidential, and con-
                                                                           or conspiring or attempting to violate
                                                                                                                                         trolled information.
                                                                           any provision of section 57 of the                        820.13 Direction to NNSA contractors.
                                                                           Atomic Energy Act may be fined up to
                                                                           $10,000 or imprisoned up to 10 years, or                           Subpart B—Enforcement Process
                                                                           both. If the offense is committed with
                                                                           intent to injure the United States or to                  820.20 Purpose and scope.
                                                                           aid any foreign nation, the penalty                       820.21 Investigations.
                                                                           could be up to life imprisonment and a                    820.22 Informal conference.
                                                                           $20,000 fine.                                             820.23 Consent order.
                                                                              (b) Title 18 of the United States Code,                820.24 Preliminary notice of violation.
                                                                                                                                     820.25 Final notice of violation.
                                                                           section 1001, provides that persons con-
                                                                                                                                     820.26 Enforcement adjudication.
                                                                           victed of willfully falsifying, con-                      820.27 Answer.
                                                                           cealing, or covering up a material fact                   820.28 Prehearing actions.
                                                                           or making false, fictitious or fraudu-                    820.29 Hearing.
                                                                           lent statements or representations                        820.30 Post-hearing filings.
                                                                           may be fined up to $10,000 or impris-                     820.31 Initial decision.
                                                                           oned up to five years, or both.                           820.32 Final order.
                                                                                                                                     820.33 Default order.
                                                                           § 810.16 Effective date and savings                       820.34 Accelerated decision.
                                                                               clause.                                               820.35 Ex parte discussions.
                                                                              Except for actions that may be taken                   820.36 Filing, form, and service of docu-
                                                                           by DOE pursuant to § 810.11, the regula-                      ments.
                                                                           tions in this part do not affect the va-                  820.37 Participation in an adjudication.
                                                                           lidity or terms of any specific author-                   820.38 Consolidation and severance.
                                                                                                                                     820.39 Motions.
                                                                           izations granted under regulations in
                                                                           effect before April 26, 2000 (and con-                             Subpart C—Compliance Orders
                                                                           tained in the 10 CFR, part 500 to end,
                                                                           edition revised as of January 1, 2000) or                 820.40    Purpose and scope.
                                                                           generally authorized activities under                     820.41    Compliance order.
                                                                           those regulations for which the con-                      820.42    Final order.
                                                                           tracts, purchase orders, or licensing ar-                 820.43    Appeal.
                                                                           rangements were already in effect. Per-
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                                                                           sons engaging in activities that were                                 Subpart D—Interpretations
                                                                           generally authorized under regulations                    820.50    Purpose and scope.
                                                                           in effect before April 26, 2000, but that                 820.51    General Counsel.
                                                                           require specific authorization under                      820.52    Procedures.

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                                                                           Department of Energy                                                                                 § 820.2

                                                                                      Subpart E—Exemption Relief                        Act or AEA means the Atomic Energy
                                                                                                                                      Act of 1954, as amended.
                                                                           820.60 Purpose and scope.
                                                                           820.61 Secretarial officer.                                  Administrative Law Judge means an
                                                                           820.62 Criteria.                                           Administrative Law Judge appointed
                                                                           820.63 Procedures.                                         under 5 U.S.C. 3105.
                                                                           820.64 Terms and conditions.                                 Consent Agreement means any written
                                                                           820.65 Implementation plan.                                document, signed by the Director and a
                                                                           820.66 Appeal.
                                                                           820.67 Final order.
                                                                                                                                      person, containing stipulations or con-
                                                                                                                                      clusions of fact or law and a remedy ac-
                                                                                      Subpart F—Criminal Penalties                    ceptable to both the Director and the
                                                                                                                                      person.
                                                                           820.70     Purpose and scope.
                                                                                                                                        Contractor means any person under
                                                                           820.71     Standard.
                                                                           820.72     Referral to the Attorney General.               contract (or its subcontractors or sup-
                                                                                                                                      pliers) with the Department of Energy
                                                                                       Subpart G—Civil Penalties                      with the responsibility to perform ac-
                                                                                                                                      tivities or to supply services or prod-
                                                                           820.80 Basis and purpose.                                  ucts that are subject to DOE Nuclear
                                                                           820.81 Amount of penalty.
                                                                                                                                      Safety Requirements.
                                                                           APPENDIX A TO PART 820—GENERAL STATE-
                                                                               MENT OF ENFORCEMENT POLICY
                                                                                                                                        Department means the United States
                                                                                                                                      Department of Energy or any prede-
                                                                             AUTHORITY: 42 U.S.C. 2201; 2282(a); 7191; 28             cessor agency.
                                                                           U.S.C. 2461 note; 50 U.S.C. 2410.
                                                                                                                                        Director means the DOE Official to
                                                                             SOURCE: 58 FR 43692, Aug. 17, 1993, unless               whom the Secretary has assigned the
                                                                           otherwise noted.                                           authority to issue Notices of Violation
                                                                                                                                      under subpart B of this part, including
                                                                                        Subpart A—General                             the Director of Enforcement, or his
                                                                                                                                      designee. With regard to activities and
                                                                           § 820.1 Purpose and scope.                                 facilities covered under E.O. 12344, 42
                                                                              (a) Scope. This part sets forth the                     U.S.C. 7158 note, pertaining to Naval
                                                                           procedures to govern the conduct of                        nuclear propulsion, the Director shall
                                                                           persons involved in DOE nuclear activi-                    mean the Deputy Administrator for
                                                                           ties and, in particular, to achieve com-                   Naval Reactors or his designee.
                                                                           pliance with the DOE Nuclear Safety                          Docketing Clerk means the Office in
                                                                           Requirements by all persons subject to                     DOE with which documents for an en-
                                                                           those requirements.                                        forcement action must be filed and
                                                                              (b) Questions not addressed by these                    which is responsible for maintaining a
                                                                           rules. Questions that are not addressed                    record and a public docket for enforce-
                                                                           in this part shall be resolved at the dis-                 ment actions commencing with the fil-
                                                                           cretion of the DOE Official.                               ing of a Preliminary Notice of Viola-
                                                                              (c) Exclusion. Activities and facilities                tion. It is also the Office with which in-
                                                                           covered under E.O. 12344, 42 U.S.C. 7158                   terpretations, exemptions, and any
                                                                           note, pertaining to Naval nuclear pro-                     other documents designated by the
                                                                           pulsion are excluded from the require-                     Secretary shall be filed.
                                                                           ments of subparts D and E of this part                       DOE means the United States De-
                                                                           regarding interpretations and exemp-                       partment of Energy or any predecessor
                                                                           tions related to this part. The Deputy                     agency.
                                                                           Administrator for Naval Reactors or                          DOE Nuclear Safety Requirements
                                                                           his designee will be responsible for for-                  means the set of enforceable rules, reg-
                                                                           mulating, issuing, and maintaining ap-                     ulations, or orders relating to nuclear
                                                                           propriate records of interpretations                       safety adopted by DOE (or by another
                                                                           and exemptions for these facilities and                    Agency if DOE specifically identifies
                                                                           activities.                                                the rule, regulation, or order) to gov-
                                                                           [58 FR 43692, Aug. 17, 1993, as amended at 71              ern the conduct of persons in connec-
                                                                           FR 68732, Nov. 28, 2006]                                   tion with any DOE nuclear activity
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                                                                                                                                      and includes any programs, plans, or
                                                                           § 820.2 Definitions.                                       other provisions intended to imple-
                                                                              (a) The following definitions apply to                  ment these rules, regulations, orders, a
                                                                           this part:                                                 Nuclear Statute or the Act, including

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                                                                           § 820.2                                                               10 CFR Ch. III (1–1–10 Edition)

                                                                           technical specifications and oper-                           General Counsel means the General
                                                                           ational safety requirements for DOE                       Counsel of DOE or his designee.
                                                                           nuclear facilities. For purposes of the                      Hearing means an on-the-record en-
                                                                           assessment of civil penalties, the defi-                  forcement adjudication open to the
                                                                           nition of DOE Nuclear Safety Require-                     public and conducted under the proce-
                                                                           ments is limited to those identified in                   dures set forth in subpart B of this
                                                                           10 CFR 820.20(b).                                         part.
                                                                              DOE Official means the person, or his                     Initial Decision means the decision
                                                                           designee, in charge of making a deci-                     filed by the Presiding Officer based
                                                                           sion under this part.                                     upon the record of the enforcement ad-
                                                                              Enforcement adjudication means the                     judication out of which it arises.
                                                                           portion of the enforcement process                           Interpretation means a statement by
                                                                           that commences when a respondent re-                      the General Counsel concerning the
                                                                           quests an on-the-record adjudication of                   meaning or effect of the Act, a Nuclear
                                                                           the assessment of a civil penalty and                     Statute, or a DOE Nuclear Safety Re-
                                                                           terminates when a Presiding Officer                       quirement which relates to a specific
                                                                           files an initial decision.                                factual situation but may also be a rul-
                                                                              Exemption means the final order that                   ing of general applicability where the
                                                                           sets forth the relief, waiver, or release,                General Counsel determines such ac-
                                                                           either temporary or permanent, from a                     tion to be appropriate.
                                                                           DOE Nuclear Safety Requirement, as
                                                                                                                                        NNSA means the National Nuclear
                                                                           granted by the appropriate Secretarial
                                                                                                                                     Security Administration.
                                                                           Officer pursuant to the provisions of
                                                                                                                                        Nuclear Statute means any statute or
                                                                           subpart E of this part.
                                                                                                                                     provision of a statute that relates to a
                                                                              Filing means, except as otherwise
                                                                                                                                     DOE nuclear activity and for which
                                                                           specifically indicated, the completion
                                                                                                                                     DOE is responsible.
                                                                           of providing a document to the Office
                                                                           of the Docketing Clerk and serving the                       Party means the Director and the re-
                                                                           document on the person to whom the                        spondent in an enforcement adjudica-
                                                                           document is addressed.                                    tion under this part.
                                                                              Final Notice of Violation means a doc-                    Person means any individual, cor-
                                                                           ument issued by the Director in which                     poration, partnership, firm, associa-
                                                                           the Director determines that the re-                      tion, trust, estate, public or private in-
                                                                           spondent has violated or is continuing                    stitution, group, Government agency,
                                                                           to violate a DOE Nuclear Safety Re-                       any State or political subdivision of, or
                                                                           quirement and includes:                                   any political entity within a State, any
                                                                              (i) A statement specifying the DOE                     foreign government or nation or any
                                                                           Nuclear Safety Requirement to which                       political subdivision of any such gov-
                                                                           the violation relates;                                    ernment or nation, or other entity and
                                                                              (ii) A concise statement of the basis                  any legal successor, representative,
                                                                           for the determination;                                    agent or agency of the foregoing; pro-
                                                                              (iii) Any remedy, including the                        vided that person does not include the
                                                                           amount of any civil penalty;                              Department or the United States Nu-
                                                                              (iv) A statement explaining the rea-                   clear Regulatory Commission. For pur-
                                                                           soning behind any remedy; and                             poses of civil penalty assessment, the
                                                                              (v) If the Notice assesses a civil pen-                term also includes affiliated entities,
                                                                           alty, notice of respondent’s right:                       such as a parent corporation.
                                                                              (A) To waive further proceedings and                      Preliminary Notice of Violation means
                                                                           pay the civil penalty;                                    a document issued by the Director in
                                                                              (B) To request an on-the-record adju-                  which the Director sets forth the pre-
                                                                           dication of the assessment of the civil                   liminary conclusions that the respond-
                                                                           penalty; or                                               ent has violated or is continuing to
                                                                              (C) To seek judicial review of the as-                 violate a DOE Nuclear Safety Require-
                                                                           sessment of the civil penalty.                            ment and includes:
                                                                              Final Order means an order of the                         (i) A statement specifying the DOE
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                                                                           Secretary that represents final agency                    Nuclear Safety Requirement to which
                                                                           action and, where appropriate, imposes                    the violation relates;
                                                                           a remedy with which the recipient of                         (ii) A concise statement of the basis
                                                                           the order must comply.                                    for alleging the violation;

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                                                                           Department of Energy                                                                                § 820.3

                                                                             (iii) Any proposed remedy, including                    taining to Naval nuclear propulsion,
                                                                           the amount of any proposed civil pen-                     Secretarial Officer means the Deputy
                                                                           alty; and                                                 Administrator for Naval Reactors.
                                                                             (iv) A statement explaining the rea-                      Secretary means the Secretary of En-
                                                                           soning behind any proposed remedy.                        ergy or his designee.
                                                                             Presiding Officer means the Adminis-                      (b) Terms defined in the Act and not
                                                                           trative Law Judge designated to be in                     defined in these rules are used con-
                                                                           charge of an enforcement adjudication                     sistent with the meanings given in the
                                                                           who shall conduct a fair and impartial                    Act.
                                                                           hearing, assure that the facts are fully                    (c) As used in this part, words in the
                                                                           elicited, adjudicate all issues, avoid                    singular also include the plural and
                                                                           delay, and shall have authority to:                       words in the masculine gender also in-
                                                                             (i) Conduct an adjudicatory hearing
                                                                                                                                     clude the feminine and vice versa, as
                                                                           under this part;
                                                                                                                                     the case may require.
                                                                             (ii) Rule upon motions, requests, and
                                                                           offers of proof, dispose of procedural re-                [58 FR 43692, Aug. 17, 1993, as amended at 71
                                                                           quests, and issue all necessary orders;                   FR 68732, Nov. 28, 2006; 72 FR 31921, June 8,
                                                                             (iii) Exercise the authority set forth                  2007]
                                                                           in § 820.8;
                                                                             (iv) Admit or exclude evidence;                         § 820.3     Separation of functions.
                                                                             (v) Hear and decide questions of fact,                    (a) Separation of functions. After a re-
                                                                           law, or discretion, except for the valid-                 spondent requests an on-the-record ad-
                                                                           ity of regulations and interpretations                    judication of an assessment of a civil
                                                                           issued by DOE;                                            penalty contained in a Final Notice of
                                                                             (vi) Require parties to attend con-                     Violation, no person shall participate
                                                                           ferences for the settlement or sim-                       in a decision-making function in an en-
                                                                           plification of the issues, or the expedi-                 forcement proceeding if he has been, is
                                                                           tion of the proceedings;                                  or will be responsible for an investiga-
                                                                             (vii) Draw adverse inferences against                   tive or prosecutorial function related
                                                                           a party that fails to comply with his                     to that proceeding or if he reports to
                                                                           orders;                                                   the person responsible for the inves-
                                                                             (viii) Do all other acts and take all                   tigative or prosecutorial function.
                                                                           measures necessary for the mainte-
                                                                                                                                       (b) Director. The Director shall be re-
                                                                           nance of order and for the efficient, fair
                                                                                                                                     sponsible for the investigation and
                                                                           and impartial adjudication of issues
                                                                                                                                     prosecution of violations of the DOE
                                                                           arising in proceedings governed by
                                                                                                                                     Nuclear Safety Requirements. After
                                                                           these rules.
                                                                                                                                     the request for an enforcement adju-
                                                                             Remedy means any action necessary
                                                                           or appropriate to rectify, prevent, or                    dication, the Director shall not discuss
                                                                           penalize a violation of the Act, a Nu-                    ex parte the merits of the proceeding
                                                                           clear Statute, or a DOE Nuclear Safety                    with a DOE Official or any person like-
                                                                           Requirements, including the assess-                       ly to advise the DOE Official in the de-
                                                                           ment of civil penalties, the require-                     cision of the proceeding.
                                                                           ment of specific actions, or the modi-                      (c) Presiding Officer. A Presiding Offi-
                                                                           fication, suspension or recision of a                     cer shall perform no duties incon-
                                                                           contract.                                                 sistent with his responsibilities as a
                                                                             Respondent means any person to                          Presiding Officer, and will not be re-
                                                                           whom the Director addresses a Notice                      sponsible to or subject to the super-
                                                                           of Violation.                                             vision or direction of any officer or em-
                                                                             Secretarial Officer means an indi-                      ployee engaged in the performance of
                                                                           vidual who is appointed to a position in                  an investigative or prosecutorial func-
                                                                           the Department by the President of the                    tion. The Presiding Officer may not
                                                                           United States with the advice and con-                    consult any person other than a mem-
                                                                           sent of the Senate or the head of a de-                   ber of his staff or a special assistant on
                                                                           partmental element who is primarily                       any fact at issue unless on notice and
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                                                                           responsible for the conduct of an activ-                  opportunity for all parties to partici-
                                                                           ity under the Act. With regard to ac-                     pate, except as required for the disposi-
                                                                           tivities and facilities covered under                     tion of ex parte matters as authorized
                                                                           E.O. 12344, 42 U.S.C. 7158 note, per-                     by law.

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                                                                           § 820.4                                                               10 CFR Ch. III (1–1–10 Edition)

                                                                           § 820.4    Conflict of interest.                             (e) When service is complete. Service
                                                                                                                                     upon a person is complete:
                                                                             A DOE Official may not perform
                                                                                                                                        (1) By personal delivery, on handing
                                                                           functions provided for in this part re-
                                                                                                                                     the paper to the individual, or leaving
                                                                           garding any matter in which he has a
                                                                                                                                     it at his office with his clerk or other
                                                                           financial interest or has any relation-
                                                                                                                                     person in charge or, if there is no one
                                                                           ship that would make it inappropriate
                                                                                                                                     in charge, leaving it in a conspicuous
                                                                           for him to act. A DOE Official shall
                                                                                                                                     place therein or, if the office is closed
                                                                           withdraw at any time from any action
                                                                                                                                     or the person to be served has no office,
                                                                           in which he deems himself disqualified
                                                                                                                                     leaving it at his usual place of resi-
                                                                           or unable to act for any reason. Any in-
                                                                                                                                     dence with some person of suitable age
                                                                           terested person may at any time re-
                                                                                                                                     and discretion then residing there;
                                                                           quest the General Counsel to disqualify
                                                                                                                                        (2) By mail, on deposit in the United
                                                                           a DOE Official or request that the Gen-
                                                                                                                                     States mail, properly stamped and ad-
                                                                           eral Counsel disqualify himself. In the
                                                                                                                                     dressed; or
                                                                           case of an enforcement adjudication, a
                                                                                                                                        (3) By any other means authorized or
                                                                           motion to disqualify shall be made to
                                                                                                                                     required by the DOE Official.
                                                                           the Presiding Officer. The request shall
                                                                                                                                        (f) Proof of service. Proof of service,
                                                                           be supported by affidavits setting forth
                                                                                                                                     stating the name and address of the
                                                                           the grounds for disqualification of the
                                                                                                                                     person on whom served and the manner
                                                                           DOE Official. A decision shall be made
                                                                                                                                     and date of service, shall be shown for
                                                                           as soon as practicable and information
                                                                                                                                     each document filed, and may be made
                                                                           may be requested from any person con-
                                                                                                                                     by:
                                                                           cerning the matter. If a DOE Official is
                                                                                                                                        (1) Written acknowledgement of the
                                                                           disqualified or withdraws from the pro-
                                                                                                                                     person served or his counsel;
                                                                           ceeding, a qualified individual who has
                                                                                                                                        (2) The certificate of counsel if he has
                                                                           none of the infirmities listed in this
                                                                                                                                     made the service;
                                                                           section shall replace him.
                                                                                                                                        (3) The affidavit of the person mak-
                                                                           § 820.5    Service.                                       ing the service; or
                                                                                                                                        (4) Any other means authorized or re-
                                                                             (a) General rule. Any document filed                    quired by the DOE Official.
                                                                           with the Docketing Clerk must be                             (g) Deemed service. If a document is
                                                                           served on the addressee of the docu-                      deemed filed under this part, then the
                                                                           ment and shall not be considered filed                    service requirements shall be deemed
                                                                           until service is complete and unless ac-                  satisfied when the document is deemed
                                                                           companied by proof of service; provided                   filed.
                                                                           that the filing with the Docketing
                                                                           Clerk of any document addressed to the                    § 820.6 Computation and extension of
                                                                           DOE Official shall be considered serv-                         time.
                                                                           ice on the DOE Official.                                     (a) Computation. In computing any
                                                                             (b) Service in an Enforcement Adjudica-                 period of time set forth in this part, ex-
                                                                           tion. Any document filed in an enforce-                   cept as otherwise provided, the day of
                                                                           ment adjudication must be served on                       the event from which the designated
                                                                           all other participants in the adjudica-                   period begins to run shall not be in-
                                                                           tion.                                                     cluded. Saturdays, Sundays, and Fed-
                                                                             (c) Who may be served. Any paper re-                    eral legal holidays shall be included.
                                                                           quired to be served upon a person shall                   When a stated time expires on a Satur-
                                                                           be served upon him or upon the rep-                       day, Sunday or Federal legal holiday,
                                                                           resentative designated by him or by                       the stated time period shall be ex-
                                                                           law to receive service of papers. When                    tended to include the next business
                                                                           an attorney has entered an appearance                     day.
                                                                           on behalf of a person, service must be                       (b) Extensions of time. A DOE Official
                                                                           made upon the attorney of record.                         may grant an extension of any time pe-
                                                                             (d) How service may be made. Service                    riod set forth in this part.
                                                                           may be made by personal delivery, by                         (c) Service by mail. Where a pleading
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                                                                           first class, certified or registered mail                 or document is served by mail, five (5)
                                                                           or as otherwise authorized or required                    days shall be added to the time allowed
                                                                           by the DOE Official. The DOE Official                     by these rules for the filing of a respon-
                                                                           may require service by express mail.                      sive pleading or document. Where a

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                                                                           Department of Energy                                                                                § 820.8

                                                                           pleading or document is served by ex-                     file a special report providing informa-
                                                                           press mail, only two (2) days shall be                    tion relating to a DOE Nuclear Safety
                                                                           added.                                                    Requirement, the Act, or a Nuclear
                                                                                                                                     Statute, including but not limited to
                                                                           § 820.7 Questions of policy or law.                       written answers to specific questions.
                                                                              (a) Certification. There shall be no in-               The SRO may be in addition to any
                                                                           terlocutory appeal from any ruling                        other reports required by this part.
                                                                           order, or action decision of a DOE Offi-                     (c) Extension of Time. The DOE Offi-
                                                                           cial except as permitted by this sec-                     cial who issues a subpoena or SRO pur-
                                                                           tion. A Presiding Officer in an enforce-                  suant to this section, for good cause
                                                                           ment adjudication may certify, in his                     shown, may extend the time prescribed
                                                                           discretion, a question to the Secretary,                  for compliance with the subpoena or
                                                                           when the order or ruling involves an                      SRO and negotiate and approve the
                                                                           important question of law or policy                       terms of satisfactory compliance.
                                                                           concerning which there is substantial                        (d) Reconsideration. Prior to the time
                                                                           grounds for difference of opinion, and                    specified for compliance, but in no
                                                                           either an immediate decision will ma-                     event more than 10 days after the date
                                                                           terially advance the ultimate termi-                      of service of the subpoena or SRO, the
                                                                           nation of the proceeding, or subsequent                   person upon whom the document was
                                                                           review will be inadequate or ineffec-                     served may request reconsideration of
                                                                           tive.                                                     the subpoena or SRO with the DOE Of-
                                                                              (b) Decision. The certified question                   ficial who issued the document. If the
                                                                           shall be decided as soon as practicable.                  subpoena or SRO is not modified or re-
                                                                           If the Secretary determines that the
                                                                                                                                     scinded within 10 days of the date of
                                                                           question was improvidently certified,
                                                                                                                                     the filing of the request, the subpoena
                                                                           or if he takes no action within thirty
                                                                                                                                     or SRO shall be effective as issued and
                                                                           days of the certification, the certifi-
                                                                                                                                     the person upon whom the document
                                                                           cation is dismissed. The Secretary may
                                                                                                                                     was served shall comply with the sub-
                                                                           decide the question on the basis of the
                                                                                                                                     poena or SRO within 20 days of the
                                                                           submission made by the Presiding Offi-
                                                                                                                                     date of the filing. There is no adminis-
                                                                           cer or may request further information
                                                                                                                                     trative appeal of a subpoena or SRO.
                                                                           from any person.
                                                                                                                                        (e) Service. A subpoena or SRO shall
                                                                           § 820.8 Evidentiary matters.                              be served in the manner set forth in
                                                                              (a) General. A DOE Official may ob-                    § 820.5, except that service by mail
                                                                           tain information or evidence for the                      must be made by registered or certified
                                                                           full and complete investigation of any                    mail.
                                                                           matter related to a DOE nuclear activ-                       (f) Fees. (1) A witness subpoenaed by
                                                                           ity or for any decision required by this                  a DOE Official shall be paid the same
                                                                           part. A DOE Official may sign, issue                      fees and mileage as paid to a witness in
                                                                           and serve subpoenas; administer oaths                     the district courts of the United
                                                                           and affirmations; take sworn testi-                       States.
                                                                           mony; compel attendance of and se-                           (2) If a subpoena is issued at the re-
                                                                           quester witnesses; control dissemina-                     quest of a person other than an officer
                                                                           tion of any record of testimony taken                     or agency of the United States, the
                                                                           pursuant to this section; subpoena and                    witness fees and mileage shall be paid
                                                                           reproduce books, papers, correspond-                      by the person who requested the sub-
                                                                           ence, memoranda, contracts, agree-                        poena. However, at the request of the
                                                                           ments, or other relevant records or                       person, the witness fees and mileage
                                                                           tangible evidence including, but not                      shall be paid by the DOE if the person
                                                                           limited to, information retained in                       shows:
                                                                           computerized or other automated sys-                         (i) The presence of the subpoenaed
                                                                           tems in possession of the subpoenaed                      witness will materially advance the
                                                                           person.                                                   proceeding; and
                                                                              (b) Special Report Orders. A DOE Offi-                    (ii) The person who requested that
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                                                                           cial may issue a Special Report Order                     the subpoena be issued would suffer a
                                                                           (SRO) requiring any person involved in                    serious hardship if required to pay the
                                                                           a DOE nuclear activity or otherwise                       witness fees and mileage. The DOE Of-
                                                                           subject to the jurisdiction of DOE to                     ficial issuing the subpoena shall make

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                                                                           § 820.9                                                               10 CFR Ch. III (1–1–10 Edition)

                                                                           the determination required by this sub-                   the document, the privilege relied upon
                                                                           section.                                                  as the basis for withholding the docu-
                                                                             (g) Enforcement. If any person upon                     ment or information, a memorandum
                                                                           whom a subpoena or SRO is served pur-                     of law supporting the claim of privi-
                                                                           suant to this section, refuses or fails to                lege, and an identification of the per-
                                                                           comply with any provision of the sub-                     son whose privilege is being asserted.
                                                                           poena or SRO, an action may be com-                         (j) Statements/testimony. (1) If a per-
                                                                           menced in the United States District                      son’s statement/testimony is taken
                                                                           Court to enforce the subpoena or SRO.                     pursuant to a subpoena, the DOE Offi-
                                                                             (h) Certification. (1) Documents pro-                   cial shall determine whether the state-
                                                                           duced in response to a subpoena shall                     ment/testimony shall be recorded and
                                                                           be accompanied by the sworn certifi-                      the means by which it is recorded.
                                                                           cation, under penalty of perjury, of the                    (2) A person whose statement/testi-
                                                                           person to whom the subpoena was di-                       mony is recorded may procure a copy
                                                                           rected or his authorized agent that a                     of the transcript by making a written
                                                                           diligent search has been made for each                    request for a copy and paying the ap-
                                                                           document responsive to the subpoena,                      propriate fees. Upon proper identifica-
                                                                           and to the best of his knowledge, infor-                  tion, any potential witness or his at-
                                                                           mation, and belief all such documents                     torney has the right to inspect the offi-
                                                                           responsive to the subpoena are being                      cial transcript of the witness’ own
                                                                           produced unless withheld on the                           statement or testimony.
                                                                           grounds of privilege pursuant to para-                      (k) Sequestration. The DOE Official
                                                                           graph (i) of this section.                                may sequester any person who fur-
                                                                             (2) Any information furnished in re-                    nishes documents or gives testimony.
                                                                           sponse to an SRO shall be accompanied                     Unless permitted by the DOE Official,
                                                                           by the sworn certification under pen-                     neither a witness nor his attorney shall
                                                                           alty of perjury of the person to whom                     be present during the examination of
                                                                           it was directed or his authorized agent                   any other witnesses.
                                                                           who actually provides the information                       (l) Attorney. (1) Any person whose
                                                                           that to the best of his knowledge, in-                    statement or testimony is taken may
                                                                           formation and belief a diligent effort                    be accompanied, represented and ad-
                                                                           has been made to provide all informa-                     vised by his attorney; provided that, if
                                                                           tion required by the SRO, and all infor-                  the witness claims a privilege to refuse
                                                                           mation furnished is true, complete, and                   to answer a question on the grounds of
                                                                           correct unless withheld on grounds of                     self-incrimination, the witness must
                                                                           privilege pursuant to paragraph (i) of                    assert the privilege personally.
                                                                           this section.                                               (2) The DOE Official shall take all
                                                                             (3) If any document responsive to a                     necessary action to regulate the course
                                                                           subpoena is not produced or any infor-                    of testimony and to avoid delay and
                                                                           mation required by an SRO is not fur-                     prevent or restrain contemptuous or
                                                                           nished, the certification shall include a                 obstructionist conduct or contemp-
                                                                           statement setting forth every reason                      tuous language. The DOE Official may
                                                                           for failing to comply with the subpoena                   take actions as the circumstances may
                                                                           or SRO.                                                   warrant in regard to any instances
                                                                             (i) Withheld information. If a person to                where any attorney refuses to comply
                                                                           whom a subpoena or SRO is directed                        with directions or provisions of this
                                                                           withholds any document or informa-                        section.
                                                                           tion because of a claim of attorney-cli-
                                                                           ent or other privilege, the person sub-                   § 820.9 Special assistant.
                                                                           mitting the certification required by                        A DOE Official may appoint a person
                                                                           paragraph (h) of this section also shall                  to serve as a special assistant to assist
                                                                           submit a written list of the documents                    the DOE Official in the conduct of any
                                                                           or the information withheld indicating                    proceeding under this part. Such ap-
                                                                           a description of each document or in-                     pointment may occur at any appro-
                                                                           formation, the date of the document,                      priate time. A special assistant shall be
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                                                                           each person shown on the document as                      subject to the disqualification provi-
                                                                           having received a copy of the docu-                       sions in § 820.5. A special assistant may
                                                                           ment, each person shown on the docu-                      perform those duties assigned by the
                                                                           ment as having prepared or been sent                      DOE Official, including but not limited

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                                                                           Department of Energy                                                                                § 820.20

                                                                           to, serving as technical interrogators,                   may utilize any procedures deemed ap-
                                                                           technical advisors and special master.                    propriate to safeguard and prevent dis-
                                                                                                                                     closure of classified, confidential, and
                                                                           § 820.10 Office of the docketing clerk.                   controlled information, including Re-
                                                                              (a) Docket. The Docketing Clerk shall                  stricted Data and National Security In-
                                                                           maintain a docket for enforcement ac-                     formation, to unauthorized persons,
                                                                           tions commencing with the issuance of                     with minimum impairment of rights
                                                                           a Preliminary Notice of Violation, in-                    and obligations under this part.
                                                                           terpretations issued pursuant to sub-                       (b) Obligation to protect restricted in-
                                                                           part D of this part, exemptions issued                    formation. Nothing in this part shall re-
                                                                           pursuant to subpart E of this part, and                   lieve any person from safeguarding
                                                                           any other matters designated by the                       classified, confidential, and controlled
                                                                           Secretary. A docket for an enforcement                    information, including Restricted Data
                                                                           action shall contain all documents re-                    or National Security Information, in
                                                                           quired to be filed in the proceeding.                     accordance with the applicable provi-
                                                                              (b) Public inspection. Subject to the                  sions of federal statutes and the rules,
                                                                           provisions of law restricting the public                  regulations, and orders of any federal
                                                                           disclosure of certain information, any                    agency.
                                                                           person may, during Department busi-
                                                                           ness hours, inspect and copy any docu-                    § 820.13 Direction to NNSA contrac-
                                                                           ment filed with the Docketing Clerk.                          tors.
                                                                           The cost of duplicating documents                           (a) Notwithstanding any other provi-
                                                                           shall be borne by the person seeking                      sion of this part, and pursuant to sec-
                                                                           copies of such documents. The DOE Of-                     tion 3213 of Pub. L. 106–65, as amended
                                                                           ficial may waive this cost in appro-                      (codified at 50 U.S.C. 2403), the NNSA,
                                                                           priate cases.                                             rather than the Director, signs, issues
                                                                              (c) Transcript. Except as otherwise                    and serves the following actions that
                                                                           provided in this part, after the filing of                direct NNSA contractors:
                                                                           a Preliminary Notice of Violation, all                      (1) Subpoenas;
                                                                           hearings, conferences, and other meet-                      (2) Orders to compel attendance;
                                                                           ings in the enforcement process shall                       (3) Disclosures of information or doc-
                                                                           be transcribed verbatim. A copy of the                    uments obtained during an investiga-
                                                                           transcript shall be filed with the Dock-                  tion or inspection;
                                                                           eting Clerk promptly. The Docketing                         (4) Preliminary notices of violations;
                                                                           Clerk shall serve all participants with                   and
                                                                           notice of the availability of the tran-                     (5) Final notices of violations.
                                                                           script and shall furnish the partici-                       (b) The NNSA Administrator shall
                                                                           pants with a copy of the transcript                       act after consideration of the Direc-
                                                                           upon payment of the cost of reproduc-                     tor’s recommendation.
                                                                           tion, unless a participant can show
                                                                           that the cost is unduly burdensome.                       [72 FR 31921, June 8, 2007]

                                                                           § 820.11 Information requirements.                         Subpart B—Enforcement Process
                                                                              (a) Any information pertaining to a
                                                                           nuclear activity provided to DOE by                       § 820.20    Purpose and scope.
                                                                           any person or maintained by any per-                        (a) Purpose. This subpart establishes
                                                                           son for inspection by DOE shall be                        the procedures for investigating the
                                                                           complete and accurate in all material                     nature and extent of violations of the
                                                                           respects.                                                 DOE Nuclear Safety Requirements, for
                                                                              (b) No person involved in a DOE nu-                    determining, whether a violation has
                                                                           clear activity shall conceal or destroy                   occurred, for imposing an appropriate
                                                                           any information concerning a violation                    remedy, and for adjudicating the as-
                                                                           of a DOE Nuclear Safety Requirement,                      sessment of a civil penalty.
                                                                           a Nuclear Statute, or the Act.                              (b) Basis for civil penalties. DOE may
                                                                                                                                     assess civil penalties against any per-
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                                                                           § 820.12 Classified, confidential, and                    son subject to the provisions of this
                                                                                controlled information                               part who has entered into an agree-
                                                                              (a) General rule. The DOE Official in                  ment of indemnification under 42
                                                                           charge of a proceeding under this part                    U.S.C. 2210(d) (or any subcontractor or

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                                                                           § 820.21                                                              10 CFR Ch. III (1–1–10 Edition)

                                                                           supplier thereto), unless exempted                        not-for-profit     contractor,    subcon-
                                                                           from civil penalties as provided in                       tractor, or supplier, the total amount
                                                                           paragraph (c) of this section, on the                     of civil penalties paid under this part
                                                                           basis of a violation of:                                  may not exceed the total amount of
                                                                             (1) Any DOE Nuclear Safety Require-                     fees paid by DOE to that entity within
                                                                           ment set forth in the Code of Federal                     the U.S. Government fiscal year in
                                                                           Regulations;                                              which the violation occurs.
                                                                             (2) Any Compliance Order issued pur-                      (f) Not-for-profit. For purposes of this
                                                                           suant to subpart C of this part; or                       part, a ‘‘not-for-profit’’ contractor,
                                                                             (3) Any program, plan or other provi-                   subcontractor, or supplier is one for
                                                                           sion required to implement any re-                        which no part of the net earnings of
                                                                           quirement or order identified in para-                    the contractor, subcontractor, or sup-
                                                                           graphs (b)(1) or (b)(2) of this section.                  plier inures to the benefit of any nat-
                                                                             (c) Exemptions. With respect to a vio-                  ural person or for-profit artificial per-
                                                                           lation occurring under a contract en-                     son.
                                                                           tered into before August 8, 2005, the fol-                [58 FR 43692, Aug. 17, 1993, as amended at 74
                                                                           lowing contractors, and subcontractors                    FR 11843, Mar. 20, 2009]
                                                                           and suppliers to that prime contract
                                                                           only, are exempt from the assessment                      § 820.21 Investigations.
                                                                           of civil penalties under this subpart                        (a) The Director may initiate and
                                                                           with respect to the activities specified                  conduct investigations and inspections
                                                                           below:                                                    relating to the scope, nature and ex-
                                                                             (1) The University of Chicago for ac-                   tent of compliance by a person with
                                                                           tivities associated with Argonne Na-                      the Act and the DOE Nuclear Safety
                                                                           tional Laboratory;                                        Requirements and take such action as
                                                                             (2) The University of California for                    he deems necessary and appropriate to
                                                                           activities associated with Los Alamos                     the conduct of the investigation or in-
                                                                           National Laboratory, Lawrence Liver-                      spection, including any action pursu-
                                                                           more National Laboratory, and Law-                        ant to § 820.8.
                                                                           rence Berkeley National Laboratory;                          (b) Any person may request the Di-
                                                                             (3) American Telephone and Tele-                        rector to initiate an investigation or
                                                                           graph Company and its subsidiaries for                    inspection pursuant to paragraph (a) of
                                                                           activities associated with Sandia Na-                     this section. A request for an investiga-
                                                                           tional Laboratories;                                      tion or inspection shall set forth the
                                                                             (4) University Research Association,                    subject matter or activity to be inves-
                                                                           Inc. for activities associated with                       tigated or inspected as fully as possible
                                                                           FERMI National Laboratory;                                and include supporting documentation
                                                                             (5) Princeton University for activi-                    and information. No particular forms
                                                                           ties associated with Princeton Plasma                     or procedures are required.
                                                                           Physics Laboratory;                                          (c) Any person who is requested to
                                                                             (6) The Associated Universities, Inc.                   furnish documentary evidence, infor-
                                                                           for activities associated with the                        mation or testimony in an investiga-
                                                                           Brookhaven National Laboratory; and                       tion or during an inspection shall be
                                                                             (7) Battelle Memorial Institute for                     informed, upon written request, of the
                                                                           activities associated with Pacific                        general purpose of the investigation or
                                                                           Northwest Laboratory.                                     inspection.
                                                                             (d) Nonprofit educational institutions.                    (d) Information or documents that
                                                                           With respect to a violation occurring                     are obtained during any investigation
                                                                           under a contract entered into before                      or inspection shall not be disclosed un-
                                                                           August 8, 2005, any educational institu-                  less the Director directs or authorizes
                                                                           tion that is considered nonprofit under                   the public disclosure of the investiga-
                                                                           the United States Internal Revenue                        tion. Upon such authorization, the in-
                                                                           Code shall receive automatic remission                    formation or documents are a matter
                                                                           of any civil penalty assessed under this                  of public record and disclosure is not
                                                                           part.                                                     precluded by the Freedom of Informa-
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                                                                             (e) Limitation for not-for-profits. With                tion Act, 5 U.S.C. 552 and 10 CFR part
                                                                           respect to any violation occurring                        1004. A request for confidential treat-
                                                                           under a contract entered into on or                       ment of information for purposes of the
                                                                           after August 8, 2005, in the case of any                  Freedom of Information Act shall not

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                                                                           Department of Energy                                                                                § 820.24

                                                                           prevent disclosure by the Director if                     may confer at any time concerning set-
                                                                           disclosure is determined to be in the                     tlement. These settlement conferences
                                                                           public interest and otherwise per-                        shall not be open to the public and
                                                                           mitted or required by law.                                there shall be no transcript.
                                                                             (e) During the course of an investiga-                     (b) Consent order. Notwithstanding
                                                                           tion or inspection any person may sub-                    any other provision of this part, DOE
                                                                           mit at any time any document, state-                      may at any time resolve any or all
                                                                           ment of facts or memorandum of law                        issues in an outstanding enforcement
                                                                           for the purpose of explaining the per-                    proceeding with a Consent Order. A
                                                                           son’s position or furnish information                     Consent Order must be signed by the
                                                                           which the person considers relevant to                    Director and the person who is its sub-
                                                                           a matter or activity under investiga-                     ject, or a duly authorized representa-
                                                                           tion or inspection.                                       tive, must indicate agreement to the
                                                                             (f) If facts disclosed by an investiga-                 terms contained therein and must be
                                                                           tion or inspection indicate that further                  filed. A Consent Order need not con-
                                                                           action is unnecessary or unwarranted,                     stitute an admission by any person
                                                                           the investigation may be closed with-                     that the Act or a DOE Nuclear Safety
                                                                           out prejudice to further investigation                    Requirement has been violated, nor
                                                                           or inspection by the Director at any                      need it constitute a finding by the DOE
                                                                           time that circumstances so warrant.                       that such person has violated the Act
                                                                             (g) The Director may issue enforce-                     or a DOE Nuclear Safety Requirement.
                                                                           ment letters that communicate DOE’s                       A Consent Order shall, however, set
                                                                           expectations with respect to any aspect                   forth the relevant facts which form the
                                                                           of the requirements of DOE’s Nuclear                      basis for the Order and what remedy, if
                                                                           Safety Requirements, including identi-                    any, is imposed.
                                                                           fication and reporting of issues, correc-                    (c) Effect on enforcement adjudication.
                                                                           tive actions, and implementation of                       If a Consent Order is signed after the
                                                                           DOE’s Nuclear Safety Requirements,                        commencement of an enforcement ad-
                                                                           provided that an enforcement letter                       judication, the adjudication of the
                                                                           may not create the basis for any le-                      issues subject to the Consent Order
                                                                           gally enforceable requirement pursu-                      shall be stayed until the completion of
                                                                           ant to this part.                                         the Secretarial Review Process. If the
                                                                             (h) The Director may sign, issue and                    Consent Order becomes a Final Order,
                                                                           serve subpoenas.                                          the adjudication shall be terminated or
                                                                           [58 FR 43692, Aug. 17, 1993, as amended at 72             modified as specified in the Order.
                                                                           FR 31921, June 8, 2007]                                      (d) Secretarial review. A Consent Order
                                                                                                                                     shall become a Final Order 30 days
                                                                           § 820.22 Informal conference.                             after it is filed unless the Secretary
                                                                              The Director may convene an infor-                     files a rejection of the Consent Order or
                                                                           mal conference to discuss any situation                   a Modified Consent Order. A Modified
                                                                           that might be a violation of the Act or                   Consent Order shall become a Final
                                                                           a DOE Nuclear Safety Requirement, its                     Order if the Director and the person
                                                                           significance and cause, any correction                    who is its subject sign it within 15 days
                                                                           taken or not taken by the person, any                     of its filing.
                                                                           mitigating    or    aggravating     cir-
                                                                           cumstances, and any other useful infor-                   § 820.24 Preliminary notice of viola-
                                                                           mation. The Director may compel a                              tion.
                                                                           person to attend the conference. This                        (a) If the Director has reason to be-
                                                                           conference will not normally be open                      lieve a person has violated or is con-
                                                                           to the public and there shall be no                       tinuing to violate a provision of the
                                                                           transcript.                                               Act or a DOE Nuclear Safety Require-
                                                                                                                                     ment, he may file a Preliminary Notice
                                                                           § 820.23 Consent order.                                   of Violation. The Notice and any trans-
                                                                              (a) Settlement policy. DOE encourages                  mittal documents shall contain suffi-
                                                                           settlement of an enforcement pro-                         cient information to fairly apprise the
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                                                                           ceeding at any time if the settlement is                  respondent of the facts and cir-
                                                                           consistent with the objectives of the                     cumstances of the alleged violations
                                                                           Act and the DOE Nuclear Safety Re-                        and the basis of any proposed remedy,
                                                                           quirements. The Director and a person                     and to properly indicate what further

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                                                                           § 820.25                                                              10 CFR Ch. III (1–1–10 Edition)

                                                                           actions are necessary by or available to                     (i) A waiver of further proceedings;
                                                                           respondent.                                                  (ii) A request for an on-the-record ad-
                                                                             (b) Within 30 days after the filing of                  judication; or
                                                                           a Preliminary Notice of Violation, the                       (iii) A notice of intent to seek judi-
                                                                           respondent shall file a reply.                            cial review.
                                                                             (c) The reply shall be in writing and                      (c) Effect of waiver. If a respondent
                                                                           signed by the person filing it. The reply                 waives further proceedings, the Final
                                                                           shall contain a statement of all rel-                     Notice of Violation shall be deemed a
                                                                           evant facts pertaining to the situation                   Final Order enforceable against the re-
                                                                           that is the subject of the Notice. The                    spondent. The respondent must pay
                                                                           reply shall state any facts, expla-                       any civil penalty set forth in the No-
                                                                           nations and arguments which support a                     tice of Violation within 60 days of the
                                                                           denial that a violation has occurred as                   filing of waiver unless the Director
                                                                           alleged; demonstrate any extenuating                      grants additional time.
                                                                           circumstances or other reason why the                        (d) Effect of request. If a respondent
                                                                           proposed remedy should not be imposed                     files a request for an on-the-record ad-
                                                                           or should be mitigated; and furnish full                  judication, then an enforcement adju-
                                                                           and complete answers to the questions                     dication commences.
                                                                           set forth in the Notice. Copies of all                       (e) Effect of notice of intent. If a re-
                                                                           relevant documents shall be submitted                     spondent files a Notice of Intent, the
                                                                           with the reply. The reply shall include                   Final Notice of Violation shall be
                                                                           a discussion of the relevant authorities                  deemed a Final Order enforceable
                                                                           which support the position asserted, in-                  against the respondent.
                                                                           cluding rulings, regulations, interpre-                      (f) Amendment. The Director may
                                                                           tations, and previous decisions issued                    amend the Final Notice of Violation at
                                                                           by DOE.                                                   any time before an action takes place
                                                                             (d) The respondent may terminate an                     pursuant to paragraph (b) of this sec-
                                                                           enforcement action if the reply agrees                    tion. An amendment shall add fifteen
                                                                           to comply with the proposed remedy                        days to the time periods under para-
                                                                           and waives any right to contest the No-                   graph (b) of this section.
                                                                           tice or the remedy. If a respondent                          (g) Withdrawal. The Director may
                                                                           elects this option, the Preliminary No-                   withdraw the Final Notice of Viola-
                                                                           tice of Violation shall be deemed a                       tion, or any part thereof, at any time
                                                                           Final Order upon the filing of the                        before an action under paragraph (b) of
                                                                           reply.                                                    this section.

                                                                           § 820.25 Final notice of violation.                       § 820.26 Enforcement adjudication.
                                                                              (a) General rule. If, after reviewing                     If a respondent files a request for an
                                                                           the reply submitted by the respondent,                    on-the-record adjudication, an enforce-
                                                                           the Director determines that a person                     ment adjudication is initiated and the
                                                                           violated or is continuing to violate a                    Docketing Clerk shall notify the Sec-
                                                                           provision of the Act or a DOE Nuclear                     retary who shall appoint an Adminis-
                                                                           Safety Requirement, he may file a                         trative Law Judge to be the Presiding
                                                                           Final Notice of Violation. The Final                      Officer.
                                                                           Notice shall concisely state the deter-
                                                                           mined violation, any designated pen-                      § 820.27 Answer.
                                                                           alty, and further actions necessary by                       (a) General. If a respondent files a re-
                                                                           or available to respondent.                               quest for an on-the-record adjudication
                                                                              (b) Effect of final notice. (1) If a Final             pursuant to § 820.25, a written answer to
                                                                           Notice of Violation does not contain a                    the Final Notice of Violation shall be
                                                                           civil penalty, it shall be deemed filed                   filed at the same time the request is
                                                                           as a Final Order 15 days after the Final                  filed.
                                                                           Notice is filed unless the Secretary                         (b) Contents of the answer. The answer
                                                                           files a Final Order which modifies the                    shall clearly and directly admit, deny
                                                                           Final Notice.                                             or explain each of the factual allega-
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                                                                              (2) If a Final Notice of Violation con-                tions contained in the Final Notice of
                                                                           tains a civil penalty, the respondent                     Violation with regard to which re-
                                                                           must file within 30 days after the filing                 spondent has any knowledge, informa-
                                                                           of the Final Notice:                                      tion or belief. Where respondent has no

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                                                                           Department of Energy                                                                                § 820.28

                                                                           knowledge, information or belief of a                     changed and witnesses whose names
                                                                           particular factual allegation and so                      have not been exchanged shall not be
                                                                           states, the allegation is deemed denied.                  introduced into evidence or allowed to
                                                                           The answer shall also state the cir-                      testify without permission of the Pre-
                                                                           cumstance or argument that is alleged                     siding Officer. The Presiding Officer
                                                                           to constitute the grounds of defense                      shall allow the parties reasonable op-
                                                                           and the facts that respondent intends                     portunity to review new evidence.
                                                                           to place at issue.                                          (d) Prehearing conference order. The
                                                                             (c) Failure to admit, deny, or explain.                 Presiding Officer shall prepare an order
                                                                           Failure of respondent to admit, deny,                     incorporating any action taken at the
                                                                           or explain any material factual allega-                   conference. The summary shall incor-
                                                                           tion contained in the Final Notice of                     porate any written stipulations or
                                                                           Violation constitutes an admission of                     agreements of the parties and all rul-
                                                                           the allegation.                                           ings and appropriate orders containing
                                                                             (d) Amendment of the answer. The re-                    directions to the parties.
                                                                           spondent may amend the answer to the                        (e) Alternative to prehearing con-
                                                                           Final Notice of Violation upon motion                     ference. If a prehearing conference is
                                                                           granted by the Presiding Officer.                         unnecessary or impracticable, the Pre-
                                                                                                                                     siding Officer, on motion or sua sponte,
                                                                           § 820.28 Prehearing actions.                              may direct the parties to make appro-
                                                                              (a) General. The Presiding Officer                     priate filings with him to accomplish
                                                                           shall establish a schedule for the adju-                  any of the objectives set forth in this
                                                                           dication and take such other actions as                   section.
                                                                           he determines appropriate to conduct                        (f) Other discovery. (1) Except as pro-
                                                                           the adjudication in a fair and expedi-                    vided by paragraph (c) of this section,
                                                                           tious manner.                                             further discovery under this section
                                                                              (b) Prehearing conference. The Pre-                    shall be permitted only upon deter-
                                                                           siding Officer, at any time before a                      mination by the Presiding Officer:
                                                                           hearing begins, may direct the parties                      (i) That such discovery will not in
                                                                           and their counsel, or other representa-                   any way unreasonably delay the pro-
                                                                           tives, to appear at a conference before                   ceeding;
                                                                           him to consider, as appropriate:                            (ii) That the information to be ob-
                                                                              (1) The settlement of the case;                        tained is not otherwise obtainable; and
                                                                              (2) The simplification of issues and                     (iii) That such information has sig-
                                                                           stipulation of facts not in dispute;                      nificant probative value.
                                                                              (3) The necessity or desirability of                     (2) The Presiding Officer shall order
                                                                           amendments to pleadings;                                  depositions upon oral questions only
                                                                              (4) The exchange of exhibits;                          upon a showing of good cause and upon
                                                                              (5) The limitation of the number of                    a finding that:
                                                                           expert or other witnesses;                                  (i) The information sought cannot be
                                                                              (6) Setting a time and place for the                   obtained by alternative methods; or
                                                                           hearing; and                                                (ii) There is substantial reason to be-
                                                                              (7) Any other matters that may expe-                   lieve that relevant and probative evi-
                                                                           dite the disposition of the proceeding.                   dence may otherwise not be preserved
                                                                              (c) Exchange of witness lists and docu-                for presentation by a witness at the
                                                                           ments. Unless otherwise ordered by the                    hearing.
                                                                           Presiding Officer, at least five (5) days                   (3) Any party to the proceeding desir-
                                                                           before any prehearing conference, each                    ing an order to take further discovery
                                                                           party shall make available to all other                   shall make a motion therefor. Such a
                                                                           parties, as appropriate, the names of                     motion shall set forth:
                                                                           the expert and other witnesses it in-                       (i) The circumstances warranting the
                                                                           tends to call, together with a brief nar-                 taking of the discovery;
                                                                           rative summary of their expected testi-                     (ii) The nature of the information ex-
                                                                           mony, and copies of all documents and                     pected to be discovered; and
                                                                           exhibits that each party intends to in-                     (iii) The proposed time and place
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                                                                           troduce into evidence. Documents and                      where it will be taken. If the Presiding
                                                                           exhibits shall be marked for identifica-                  Officer determines that the motion
                                                                           tion as ordered by the Presiding Offi-                    should be granted, he shall issue an
                                                                           cer. Documents that have not been ex-                     order for the taking of such discovery

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                                                                           § 820.29                                                              10 CFR Ch. III (1–1–10 Edition)

                                                                           together with the conditions and terms                    mony, the Presiding Officer shall
                                                                           thereof.                                                  admit into the record as evidence
                                                                             (4) When the information sought to                      verified written statements of fact or
                                                                           be obtained is within the control of one                  opinion prepared by a witness. The ad-
                                                                           of the parties, failure to comply with                    missibility of the evidence contained in
                                                                           an order issued pursuant to this para-                    the statement shall be subject to the
                                                                           graph may lead to the inference that                      same rules as if the testimony were
                                                                           the information to be discovered would                    produced under oral examination. Be-
                                                                           be adverse to the party from whom the                     fore any such statement is read or ad-
                                                                           information was sought, or the                            mitted into evidence, the witness shall
                                                                           issuance of a default order under 820.38.                 have delivered a copy of the statement
                                                                                                                                     to the Presiding Officer and the oppos-
                                                                           § 820.29 Hearing.                                         ing counsel not less than 10 days prior
                                                                              (a) General. Except as otherwise pro-                  to the date the witness is scheduled to
                                                                           vided by this part or the Presiding Offi-                 testify. The witness presenting the
                                                                           cer, a hearing shall be conducted in ac-                  statement shall swear or affirm that
                                                                           cordance with the Federal Rules of Evi-                   the statement is true and accurate to
                                                                           dence. The Presiding Officer shall have                   the best of his knowledge, information,
                                                                           the discretion to admit all evidence                      and belief and shall be subject to ap-
                                                                           that is not irrelevant, immaterial, un-                   propriate oral cross-examination upon
                                                                           duly repetitious, or otherwise unreli-                    the contents thereof provided such
                                                                           able or of little probative value, if he                  cross-examination is not unduly repeti-
                                                                           believes the evidence might facilitate                    tious.
                                                                           the fair and expeditious resolution of                      (d) Burden of presentation; burden of
                                                                           the proceeding. But such evidence may                     persuasion. The Director has the burden
                                                                           be reasonably limited by the Presiding                    of going forward with and of proving
                                                                           Officer in scope and length in order to                   that the violation occurred as set forth
                                                                           permit prompt resolution of the pro-                      in the Notice of Violation and that the
                                                                           ceeding. In the presentation, admis-                      proposed civil penalty is appropriate.
                                                                           sion, disposition, and use of evidence,                   Following the establishment of a prima
                                                                           the Presiding Officer shall preserve the                  facie case, respondent shall have the
                                                                           confidentiality of trade secrets and                      burden of presenting and of going for-
                                                                           other commercial and financial infor-                     ward with any defense to the allega-
                                                                           mation, and shall protect classified and                  tions set forth in the Notice of Viola-
                                                                           unclassified controlled nuclear infor-                    tion. Each matter of controversy shall
                                                                           mation, as well as any other informa-                     be determined by the Presiding Officer
                                                                           tion protected from public disclosure                     upon a preponderance of the evidence.
                                                                           pursuant to law or regulation. The con-
                                                                           fidential, trade secret, or classified or                 § 820.30    Post-hearing filings.
                                                                           otherwise protected status of any in-
                                                                           formation shall not, however, preclude                       Within fifteen days after the filing of
                                                                           its being introduced into evidence. The                   the transcript of the hearing, or within
                                                                           Presiding Officer may make such or-                       such longer time as may be fixed by
                                                                           ders as may be necessary to consider                      the Presiding Officer, any party may
                                                                           such evidence in camera, including the                    file for the consideration of the Pre-
                                                                           preparation of a supplemental initial                     siding Officer, proposed findings of
                                                                           decision to address questions of law,                     fact, conclusions of law, and a proposed
                                                                           fact, or discretion that arise out of                     order, together with briefs in support
                                                                           that portion of the evidence that is                      thereof. Reply briefs may be filed with-
                                                                           confidential, includes trade secrets, is                  in ten days of the filing of briefs. All
                                                                           classified, or is otherwise protected.                    filings shall be in writing, shall be
                                                                              (b) Subpoenas. The attendance of wit-                  served upon all parties, and shall con-
                                                                           nesses or the production of documen-                      tain adequate references to the record
                                                                           tary evidence may be required by sub-                     and authorities relied on.
                                                                           poena.
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                                                                              (c) Examination of witnesses. There                    § 820.31    Initial decision.
                                                                           shall be no direct oral testimony by                        (a) Initial Decision. The Presiding Of-
                                                                           witnesses, except as permitted by the                     ficer shall file an Initial Decision as
                                                                           Presiding Officer. In lieu of oral testi-                 soon as practicable after the period for

                                                                                                                                510



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                                                                           Department of Energy                                                                                § 820.34

                                                                           filing reply briefs under 820.30 has ex-                  evidence to the Presiding Officer to es-
                                                                           pired. The Initial Decision shall con-                    tablish a prima facie case against the
                                                                           tain findings of fact, conclusions re-                    respondent. Default by respondent con-
                                                                           garding all material issues of law or                     stitutes, for purposes of the pending ac-
                                                                           discretion, as well as reasons therefor,                  tion only, an admission of all facts al-
                                                                           any remedy and a proposed Final                           leged in the Final Notice of Violation
                                                                           Order. A party may file comments on                       and a waiver of respondent’s rights to
                                                                           an Initial Decision within fifteen days                   an on-the-record adjudication of such
                                                                           of its filing.                                            factual allegations. Default by the Di-
                                                                              (b) Amount of civil penalty. If the Pre-               rector shall result in an order to dis-
                                                                           siding Officer determines that a viola-                   miss the Final Notice of Violation with
                                                                           tion has occurred and that a civil pen-                   prejudice.
                                                                           alty is appropriate, the Initial Decision                   (b) Effect of default order. When the
                                                                           shall set forth the dollar amount of the                  Presiding Officer finds a default has oc-
                                                                           civil penalty. If the Presiding Officer                   curred, he shall file a Default Order
                                                                           decides to assess a penalty different in                  against the defaulting party. This
                                                                           amount from the penalty assessed in                       order shall constitute an Initial Deci-
                                                                           the Final Notice of Violation, the Ini-                   sion.
                                                                           tial Decision shall set forth the specific                  (c) Contents of a default order. A De-
                                                                           reasons for the increase or decrease.
                                                                                                                                     fault Order shall include findings of
                                                                           § 820.32 Final order.                                     fact showing the grounds for the order,
                                                                                                                                     conclusions regarding all material
                                                                              (a) Effect of Initial Decision. The Ini-               issues of fact, law or discretion, and
                                                                           tial Decision shall be deemed filed as a                  the remedy.
                                                                           Final Order thirty days after the filing
                                                                           of the Initial Decision unless the Sec-                   § 820.34    Accelerated decision.
                                                                           retary files a Final Order that modifies
                                                                           the Initial Decision or the Secretary                       (a) General. The Presiding Officer,
                                                                           files a Notice of Review.                                 upon motion of any party or sua sponte,
                                                                              (b) Notice of review. If the Secretary                 may at any time render an Accelerated
                                                                           files a Notice of Review, he shall file a                 Decision in favor of the Director or the
                                                                           Final Order as soon as practicable after                  respondent as to all or any part of the
                                                                           completing his review. The Secretary                      adjudication, without further hearing
                                                                           may, at his discretion, order additional                  or upon such limited additional evi-
                                                                           procedures, remand the matter or mod-                     dence, such as affidavits, as he may re-
                                                                           ify the remedy, including an increase                     quire, if no genuine issue of material
                                                                           or decrease in the amount of the civil                    fact exists and a party is entitled to
                                                                           penalty from the amount recommended                       judgment as a matter of law, as to all
                                                                           to be assessed in the Initial Decision.                   or any part of the adjudication. In ad-
                                                                              (c) Payment of a civil penalty. The re-                dition, the Presiding Officer, upon mo-
                                                                           spondent shall pay the full amount of                     tion of the respondent, may render at
                                                                           any civil penalty assessed in the Final                   any time an Accelerated Decision to
                                                                           Order within thirty (30) days after the                   dismiss an action without further hear-
                                                                           Final Order is filed unless otherwise                     ing or upon such limited additional
                                                                           agreed by the parties.                                    evidence as he requires, on the basis of
                                                                                                                                     failure to establish a prima facie case or
                                                                           § 820.33 Default order.                                   other grounds that show no right to re-
                                                                              (a) Default. The Presiding Officer,                    lief on the part of the Director.
                                                                           upon motion by a party or the filing of                     (b) Effect of Accelerated Decision. (1) If
                                                                           a Notice of Intent to issue a Default                     an Accelerated Decision is rendered as
                                                                           Order sua sponte, may find a party to                     to all the issues and claims in the adju-
                                                                           be in default if the party fails to com-                  dication, the decision constitutes an
                                                                           ply with the provisions of this part or                   Initial Decision of the Presiding Offi-
                                                                           an order of the Presiding Officer. The                    cer, and shall be filed with the Dock-
                                                                           alleged defaulting party shall have ten                   eting Clerk.
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                                                                           days to answer the motion or the No-                        (2) If an Accelerated Decision is ren-
                                                                           tice of Intent. No finding of default                     dered on less than all issues or claims
                                                                           shall be made against the respondent                      in the adjudication, the Presiding Offi-
                                                                           unless the Director presents sufficient                   cer shall determine what material

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                                                                           § 820.35                                                              10 CFR Ch. III (1–1–10 Edition)

                                                                           facts exist without substantial con-                      signer that he has read the pleading,
                                                                           troversy and what material facts re-                      letter or other document, that to the
                                                                           main controverted in good faith. He                       best of his knowledge, information and
                                                                           shall thereupon file an interlocutory                     belief, the statements made therein are
                                                                           order specifying the facts that appear                    true, and that it is not interposed for
                                                                           substantially uncontroverted, and the                     delay.
                                                                           issues and claims upon which the adju-                      (4) The initial document filed by any
                                                                           dication will proceed.                                    person shall contain his name, address
                                                                                                                                     and telephone number. Any changes in
                                                                           § 820.35 Ex parte discussions.                            this information shall be commu-
                                                                              At no time after a respondent has re-                  nicated promptly to the Docketing
                                                                           quested an on-the-record adjudication                     Clerk and all participants to the pro-
                                                                           of the assessment of a civil penalty                      ceeding. A person who fails to furnish
                                                                           shall a DOE Official, or any person who                   such information and any changes
                                                                           is likely to advise a DOE Official in the                 thereto shall be deemed to have waived
                                                                           decision on the case, discuss ex parte                    his right to notice and service under
                                                                           the merits of the proceeding with any                     this part.
                                                                           interested person outside DOE, with                         (5) The Docketing Clerk may refuse
                                                                           any DOE staff member who performs a                       to file any document that does not
                                                                           prosecutorial or investigative function                   comply with this section. Written no-
                                                                           in such proceeding or a factually re-                     tice of such refusal, stating the reasons
                                                                           lated proceeding, or with any rep-                        therefor, shall be promptly given to the
                                                                           resentative of such person. Any ex parte                  person submitting the document. Such
                                                                           memorandum or other communication                         person may amend and resubmit any
                                                                           addressed to a DOE Official during the                    document refused for filing.
                                                                           pendency of the proceeding and relat-
                                                                           ing to the merits thereof, by or on be-                   § 820.37 Participation in an adjudica-
                                                                           half of any party shall be regarded as                        tion.
                                                                           argument made in the proceeding and
                                                                                                                                       (a) Parties. In an enforcement adju-
                                                                           shall be served upon all other parties.
                                                                                                                                     dication, the Director and the respond-
                                                                           Any oral communication shall be set
                                                                           forth in a written memorandum and                         ent shall be the only parties; provided
                                                                           served on all other parties. The other                    that the Presiding Officer may permit
                                                                           parties shall be given an opportunity                     a person to intervene as a party if the
                                                                           to reply to such memorandum or com-                       person demonstrates it could be liable
                                                                           munication.                                               in the event a civil penalty is assessed.
                                                                                                                                       (b) Appearances. Any party to an en-
                                                                           § 820.36 Filing, form, and service of                     forcement adjudication may appear in
                                                                                documents.                                           person or by counsel or other rep-
                                                                              (a) Filing in an enforcement proceeding.               resentative. A partner may appear on
                                                                           The original and three copies of any                      behalf of a partnership and an officer
                                                                           document in an enforcement pro-                           may appear on behalf of a corporation.
                                                                           ceeding shall be filed with the Dock-                     Persons who appear as counsel or other
                                                                           eting Clerk commencing with the filing                    representative must conform to the
                                                                           of a Preliminary Notice of Violation.                     standards of conduct and ethics re-
                                                                              (b) Form of documents in an enforce-                   quired of practitioners before the
                                                                           ment proceeding. (1) Except as provided                   courts of the United States.
                                                                           herein, or by order of the DOE Official,                    (c) Amicus Curiae. Persons not parties
                                                                           there are no specific requirements as to                  to an enforcement adjudication who
                                                                           the form of documents filed in an en-                     wish to file briefs may so move. The
                                                                           forcement proceeding.                                     motion shall identify the interest of
                                                                              (2) The first page of every document                   the person and shall state the reasons
                                                                           shall contain a caption identifying the                   why the proposed amicus brief is desir-
                                                                           respondent and the docket number.                         able. If the motion is granted, the Pre-
                                                                              (3) The original of any document                       siding Officer shall issue an order set-
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                                                                           (other than exhibits) shall be signed by                  ting the time for filing such brief. An
                                                                           the person filing it or by his counsel or                 amicus curiae is eligible to participate
                                                                           other representative. The signature                       in any briefing after his motion is
                                                                           constitutes a representation by the                       granted, and shall be served with all

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                                                                           Department of Energy                                                                                § 820.50

                                                                           briefs, reply briefs, motions, and orders                   Subpart C—Compliance Orders
                                                                           relating to issues to be briefed.
                                                                                                                                     § 820.40    Purpose and scope.
                                                                           § 820.38     Consolidation and severance.
                                                                                                                                       This subpart provides for the
                                                                             (a) Consolidation. The Presiding Offi-                  issuance of Compliance Orders to pre-
                                                                           cer may, by motion or sua sponte, con-                    vent, rectify or penalize violations of
                                                                           solidate any or all matters at issue in                   the Act, a Nuclear Statute, or a DOE
                                                                           two or more enforcement adjudications                     Nuclear Safety Requirement and to re-
                                                                           under this part where there exists com-                   quire action consistent with the Act, a
                                                                           mon parties or common questions of                        Nuclear Statute, or a DOE Nuclear
                                                                           fact or law, consolidation would expe-                    Safety Requirement.
                                                                           dite and simplify consideration of the
                                                                           issues, and consolidation would not ad-                   § 820.41    Compliance order.
                                                                           versely affect the rights of parties en-                    The Secretary may issue to any per-
                                                                           gaged in otherwise separate adjudica-                     son involved in a DOE nuclear activity
                                                                           tions.                                                    a Compliance Order that:
                                                                             (b) Severance. The Presiding Officer                      (a) Identifies a situation that vio-
                                                                           may, by motion or sua sponte, for good                    lates, potentially violates, or otherwise
                                                                           cause shown order any enforcement ad-                     is inconsistent with the Act, a Nuclear
                                                                           judication severed with respect to any                    Statute, or a DOE Nuclear Safety Re-
                                                                           or all parties or issues.                                 quirement;
                                                                                                                                       (b) Mandates a remedy or other ac-
                                                                           § 820.39     Motions.                                     tion; and,
                                                                              (a) General. All motions in an en-                       (c) States the reasons for the remedy
                                                                           forcement adjudication except those                       or other action.
                                                                           made orally, shall be in writing, state
                                                                           the grounds therefor with particu-                        § 820.42    Final order.
                                                                           larity, set forth the relief or order                       A Compliance Order is a Final Order
                                                                           sought, and be accompanied by any af-                     that constitutes a DOE Nuclear Safety
                                                                           fidavit, certificate, other evidence, or                  Requirement that is effective imme-
                                                                           legal memorandum relied upon.                             diately unless the Order specifies a dif-
                                                                              (b) Answer to motions. Except as oth-                  ferent effective date.
                                                                           erwise specified by a particular provi-
                                                                           sion of this part or by the Presiding Of-                 § 820.43    Appeal.
                                                                           ficer, a party shall have the right to                      Within fifteen days of the issuance of
                                                                           file a written answer to the motion of                    a Compliance Order, the recipient of
                                                                           another party within 10 days after the                    the Order may request the Secretary to
                                                                           filing of such motion. The answer shall                   rescind or modify the Order. A request
                                                                           be accompanied by any affidavit, cer-                     shall not stay the effectiveness of a
                                                                           tificate, other evidence, or legal memo-                  Compliance Order unless the Secretary
                                                                           randum relied upon. If no answer is                       issues an order to that effect.
                                                                           filed within the designated period, the
                                                                           party may be deemed to have waived                              Subpart D—Interpretations
                                                                           any objection to the granting of the
                                                                           motion. The Presiding Officer may set                     § 820.50    Purpose and scope.
                                                                           a shorter or longer time for an answer,                     This subpart provides for interpreta-
                                                                           or make such other orders concerning                      tions of the Act, Nuclear Statutes, and
                                                                           the disposition of motions as he deems                    DOE Nuclear Safety Requirements.
                                                                           appropriate.                                              Any written or oral response to any
                                                                              (c) Decision. The Presiding Officer                    written or oral question which is not
                                                                           shall rule on a motion as soon as prac-                   provided pursuant to this subpart does
                                                                           ticable after the filing of the answer.                   not constitute an interpretation and
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                                                                           The decision of the Presiding Officer on                  does not provide any basis for action
                                                                           any motion shall not be subject to ad-                    inconsistent with the Act, a Nuclear
                                                                           ministrative appeal.                                      Statute, or a DOE Nuclear Safety Re-
                                                                                                                                     quirement.

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                                                                           § 820.51                                                              10 CFR Ch. III (1–1–10 Edition)

                                                                           § 820.51 General Counsel.                                   (2) Application of the requirement in
                                                                                                                                     the particular circumstances would not
                                                                              The General Counsel shall be the
                                                                                                                                     serve or is not necessary to achieve its
                                                                           DOE Official responsible for formu-
                                                                                                                                     underlying purpose, or would result in
                                                                           lating and issuing any interpretation
                                                                                                                                     resource impacts which are not justi-
                                                                           concerning the Act, a Nuclear Statute
                                                                                                                                     fied by the safety improvements; or
                                                                           or a DOE Nuclear Safety Requirement.
                                                                                                                                       (3) Application of the requirement
                                                                           § 820.52 Procedures.                                      would result in a situation signifi-
                                                                                                                                     cantly    different  than   that   con-
                                                                              The General Counsel may utilize any                    templated when the requirement was
                                                                           procedure which he deems appropriate                      adopted, or that is significantly dif-
                                                                           to comply with his responsibilities                       ferent from that encountered by others
                                                                           under this subpart. All interpretations                   similarly situated; or
                                                                           issued under this subpart must be filed                     (4) The exemption would result in
                                                                           with the Office of the Docketing Clerk                    benefit to human health and safety
                                                                           which shall maintain a docket for in-                     that compensates for any detriment
                                                                           terpretations.                                            that may result from the grant of the
                                                                                                                                     exemption; or
                                                                                Subpart E—Exemption Relief                             (5) Circumstances exist which would
                                                                                                                                     justify temporary relief from applica-
                                                                           § 820.60 Purpose and scope.                               tion of the requirement while taking
                                                                              This subpart provides for exemption                    good faith action to achieve compli-
                                                                           relief from provisions of DOE Nuclear                     ance; or
                                                                           Safety Requirements at nuclear facili-                      (6) There is present any other mate-
                                                                           ties.                                                     rial circumstance not considered when
                                                                                                                                     the requirement was adopted for which
                                                                           § 820.61 Secretarial officer.                             it would be in the public interest to
                                                                              The Secretarial Officer who is pri-                    grant an exemption.
                                                                           marily responsible for the activity to
                                                                           which a DOE Nuclear Safety Require-                       § 820.63 Procedures.
                                                                           ment relates may grant a temporary or                        The Secretarial Officer shall utilize
                                                                           permanent exemption from that re-                         any procedures deemed necessary and
                                                                           quirement as requested by any person                      appropriate to comply with his respon-
                                                                           subject to its provisions; provided that,                 sibilities under this subpart. All ex-
                                                                           the Secretarial Officer responsible for                   emption decisions must set forth in
                                                                           environment, safety and health mat-                       writing the reasons for granting or de-
                                                                           ters shall exercise this authority with                   nying the exemption, and if granted,
                                                                           respect to provisions relating to radio-                  the basis for the determination that
                                                                           logical protection of workers, the pub-                   the criteria in § 820.62 have been met
                                                                           lic and the environment. This author-                     and the terms of the exemption. All ex-
                                                                           ity may not be further delegated.                         emption decisions must be filed with
                                                                                                                                     the Office of the Docketing Clerk
                                                                           § 820.62 Criteria.                                        which shall maintain a docket for ex-
                                                                              The criteria for granting an exemp-                    emption decisions issued pursuant to
                                                                           tion to a DOE Nuclear Safety Require-                     this subpart.
                                                                           ment are determinations that the ex-
                                                                           emption:                                                  § 820.64 Terms and conditions.
                                                                              (a) Would be authorized by law;                           An exemption may contain appro-
                                                                              (b) Would not present an undue risk                    priate terms and conditions including,
                                                                           to public health and safety, the envi-                    but not limited to, provisions that :
                                                                           ronment, or facility workers;                                (a) Limit its duration;
                                                                              (c) Would be consistent with the safe                     (b) Require alternative action;
                                                                           operation of a DOE nuclear facility;                         (c) Require partial compliance; or
                                                                           and                                                          (d) Establish a schedule for full or
                                                                              (d) Involves special circumstances,                    partial compliance.
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                                                                           including the following:
                                                                              (1) Application of the requirement in                  § 820.65 Implementation plan.
                                                                           the particular circumstances conflicts                       With respect to a DOE Nuclear Safe-
                                                                           with other requirements; or                               ty Requirement for which there is no

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                                                                           Department of Energy                                                                       Pt. 820, App. A

                                                                           regulatory provision for an implemen-                     § 820.72 Referral to the Attorney Gen-
                                                                           tation plan or schedule, an exemption                          eral.
                                                                           may be granted to establish an imple-                        If there is reason to believe a crimi-
                                                                           mentation plan which reasonably dem-                      nal violation of the Act or the DOE Nu-
                                                                           onstrates that full compliance with the                   clear Safety Requirements has oc-
                                                                           requirement will be achieved within                       curred, DOE may refer the matter to
                                                                           two years of the effective date of the                    the Attorney General of the United
                                                                           requirement without a determination                       States for investigation or prosecution.
                                                                           of     special  circumstances    under
                                                                           § 820.62(d).                                                    Subpart G—Civil Penalties
                                                                           § 820.66     Appeal.                                        SOURCE: 62 FR 46184, Sept. 2, 1997, unless
                                                                             Within fifteen (15) days of the filing                  otherwise noted.
                                                                           of an exemption decision by a Secre-
                                                                                                                                     § 820.80 Basis and purpose.
                                                                           tarial Officer, the person requesting
                                                                           the exemption may file a Request to                          This subpart implements the Federal
                                                                           Review with the Secretary, or the Sec-                    Civil Penalties Inflation Adjustment
                                                                           retary may file, sua sponte, a Notice of                  Act of 1990 (the Act) (Pub. L. 101–410),
                                                                           Review. The Request to Review shall                       as amended by the Debt Collection Im-
                                                                                                                                     provement Act of 1996 (Pub. L. 104–134,
                                                                           state specifically the respects in which
                                                                                                                                     section 31001). 28 U.S.C. 2461 note. As
                                                                           the    exemption     determination     is
                                                                                                                                     amended, the Act requires each agency
                                                                           claimed to be erroneous, the grounds of                   head to adjust by regulation each civil
                                                                           the request, and the relief requested.                    monetary penalty provided by law
                                                                                                                                     within the jurisdiction of the Federal
                                                                           § 820.67     Final order.
                                                                                                                                     agency by the inflation adjustment
                                                                             If no filing is made under § 820.66, an                 specified in 28 U.S.C. 2461 note. This
                                                                           exemption decision becomes a Final                        subpart increases the civil penalty
                                                                           Order fifteen (15) days after it is filed                 amount specified in 42 U.S.C. 2282a.
                                                                           by a Secretarial Officer. If filing is
                                                                           made under § 820.66, an exemption deci-                   § 820.81 Amount of penalty.
                                                                           sion becomes a Final Order 45 days                           Any person subject to a penalty
                                                                           after it is filed by a Secretarial Officer,               under 42 U.S.C. 2282a shall be subject to
                                                                           unless the Secretary stays the effective                  a civil penalty in an amount not to ex-
                                                                           date or issues a Final Order that modi-                   ceed $110,000 for each such violation. If
                                                                           fies the decision.                                        any violation under 42 U.S.C. 2282a is a
                                                                                                                                     continuing one, each day of such viola-
                                                                                                                                     tion shall constitute a separate viola-
                                                                               Subpart F—Criminal Penalties                          tion for the purpose of computing the
                                                                                                                                     applicable civil penalty.
                                                                           § 820.70     Purpose and scope.
                                                                                                                                       EFFECTIVE DATE NOTE: At 74 FR 66033, Dec.
                                                                             This subpart provides for the identi-                   14, 2009, § 820.81 was amended by revising the
                                                                           fication of criminal violations of the                    first sentence, effective January 13, 2010. For
                                                                           Act or DOE Nuclear Safety Require-                        the convenience of the user, the revised text
                                                                           ments and the referral of such viola-                     is set forth as follows:
                                                                           tions to the Department of Justice.                       § 820.81 Amount of penalty.
                                                                                                                                        Any person subject to a penalty under 42
                                                                           § 820.71     Standard.
                                                                                                                                     U.S.C. 2282a shall be subject to a civil pen-
                                                                             If a person subject to the Act or the                   alty in an amount not to exceed $150,000 for
                                                                           DOE Nuclear Safety Requirements has,                      each such violation. * * *
                                                                           by act or omission, knowingly and will-
                                                                                                                                        APPENDIX A TO PART 820—GENERAL
                                                                           fully violated, caused to be violated,
                                                                                                                                       STATEMENT OF ENFORCEMENT POLICY
                                                                           attempted to violate, or conspired to
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                                                                           violate any section of the Act or any                                       I. Introduction
                                                                           applicable DOE Nuclear Safety Re-                           (a) This policy statement sets forth the
                                                                           quirement, the person shall be subject                    general framework through which the U.S.
                                                                           to criminal sanctions under the Act.                      Department of Energy (DOE) will seek to en-
                                                                                                                                     sure compliance with its enforceable nuclear

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                                                                           Pt. 820, App. A                                                       10 CFR Ch. III (1–1–10 Edition)
                                                                           safety regulations and orders (hereafter col-             and correct noncompliance conditions and
                                                                           lectively referred to as DOE Nuclear Safety               processes in order to protect human health
                                                                           Requirements) and, in particular, exercise                and the environment. DOE wants to facili-
                                                                           the civil penalty authority provided to DOE               tate, encourage, and support contractor ini-
                                                                           in the Price Anderson Amendments Act of                   tiatives for the prompt identification and
                                                                           1988, 42 U.S.C. 2282a (PAAA). The policy set              correction of problems. These initiatives and
                                                                           forth herein is applicable to violations of               activities will be duly considered in exer-
                                                                           DOE Nuclear Safety Requirements by DOE                    cising enforcement discretion.
                                                                           contractors who are indemnified under the                   (e) The PAAA provides DOE with the au-
                                                                           Price Anderson Act, 42 U.S.C. 2210(d), and                thority to compromise, modify, or remit
                                                                           their subcontractors and suppliers (hereafter             civil penalties with or without conditions. In
                                                                           collectively referred to as DOE contractors).             implementing the PAAA, DOE will carefully
                                                                           This policy statement is not a regulation                 consider the facts of each case of noncompli-
                                                                           and is intended only to provide general guid-             ance and will exercise appropriate discretion
                                                                           ance to those persons subject to DOE’s Nu-                in taking any enforcement action. Part of
                                                                           clear Safety Requirements as specified in the             the function of a sound enforcement program
                                                                           PAAA. It is not intended to establish a                   is to assure a proper and continuing level of
                                                                           ‘‘cookbook’’ approach to the initiation and               safety vigilance. The reasonable exercise of
                                                                           resolution of situations involving non-                   enforcement authority will be facilitated by
                                                                           compliance with DOE Nuclear Safety Re-                    the appropriate application of safety require-
                                                                           quirements. Rather, DOE intends to consider               ments to nuclear facilities and by promoting
                                                                           the particular facts of each noncompliance                and coordinating the proper contractor and
                                                                           situation in determining whether enforce-                 DOE safety compliance attitude toward
                                                                           ment sanctions are appropriate and, if so,                those requirements.
                                                                           the appropriate magnitude of those sanc-
                                                                           tions. DOE may well deviate from this policy                                 II. Purpose
                                                                           statement when appropriate in the cir-
                                                                           cumstances of particular cases. This policy                 The purpose of the DOE enforcement pro-
                                                                           statement is not applicable to activities and             gram is to promote and protect the radio-
                                                                           facilities covered under E.O. 12344, 42 U.S.C.            logical health and safety of the public and
                                                                           7158 note, pertaining to Naval nuclear pro-               workers at DOE facilities by:
                                                                           pulsion.                                                    a. Ensuring compliance by DOE contrac-
                                                                              (b) Both the Department of Energy Organi-              tors with applicable DOE Nuclear Safety Re-
                                                                           zation Act, 42 U.S.C. 7101, and the Atomic                quirements.
                                                                           Energy Act of 1954, as amended, 42 U.S.C.                   b. Providing positive incentives for a DOE
                                                                           2011, require DOE to protect the public                   contractor’s:
                                                                           health and safety, as well as the safety of                 (1) Timely self-identification of nuclear
                                                                           workers at DOE facilities, in conducting its              safety deficiencies,
                                                                           nuclear activities, and grant DOE broad au-                 (2) Prompt and complete reporting of such
                                                                           thority to achieve this goal.                             deficiencies to DOE,
                                                                              (c) The DOE goal in the compliance arena                 (3) Root cause analyses of nuclear safety
                                                                           is to enhance and protect the radiological                deficiencies,
                                                                           health and safety of the public and worker at               (4) Prompt correction of nuclear safety de-
                                                                           DOE facilities by fostering a culture among               ficiencies in a manner which precludes recur-
                                                                           both the DOE line organizations and the con-              rence, and
                                                                           tractors that activity seeks to attain and
                                                                                                                                       (5) Identification of modifications in prac-
                                                                           sustain compliance with DOE Nuclear Safety
                                                                                                                                     tices or facilities that can improve public or
                                                                           Requirements. The enforcement program and
                                                                                                                                     worker radiological health and safety.
                                                                           policy have been developed with the express
                                                                                                                                       c. Deterring future violations of DOE re-
                                                                           purpose of achieving safety inquisitiveness
                                                                                                                                     quirements by a DOE contractor.
                                                                           and voluntary compliance. DOE will estab-
                                                                           lish effective administrative processes and                 d. Encouraging the continuous overall im-
                                                                           positive incentives to the contractors for the            provement of operations at DOE nuclear fa-
                                                                           open and prompt identification and reporting              cilities.
                                                                           of noncompliances, and the initiation of                               III. Statutory Authority
                                                                           comprehensive corrective actions to resolve
                                                                           both the noncompliance conditions and the                   Section 17 of the PAAA makes most DOE
                                                                           program or process deficiencies that led to               contractors covered by the DOE Price-Ander-
                                                                           noncompliance.                                            son indemnification system, and their sub-
                                                                              (d) In the development of the DOE enforce-             contractors and suppliers, subject to civil
                                                                           ment policy, DOE recognizes that the rea-                 penalties for violations of applicable DOE
                                                                           sonable exercise of its enforcement author-               nuclear safety rules, regulations and orders.
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                                                                           ity can help to reduce the likelihood of seri-            42 U.S.C. 2282a. Furthermore, section 18 of
                                                                           ous incidents. This can be accomplished by                the PAAA makes all employees of DOE con-
                                                                           providing greater emphasis on a culture of                tractors, and their subcontractors and sup-
                                                                           safety in existing DOE operations, and                    pliers, subject to criminal penalties, includ-
                                                                           strong incentives for contractors to identify             ing monetary penalties and imprisonment,

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                                                                           Department of Energy                                                                       Pt. 820, App. A
                                                                           for knowing and willful violations of applica-            penalty, or denying that the violation has
                                                                           ble DOE nuclear safety rules, regulations                 occurred and providing the basis for its belief
                                                                           and orders. 42 U.S.C. 2273(c). Suspected, or al-          that the PNOV is incorrect. After evaluation
                                                                           leged, criminal violations are referred to the            of the DOE contractor’s response, the Direc-
                                                                           Department of Justice for appropriate ac-                 tor of Enforcement may determine that no
                                                                           tion. 42 U.S.C. 2271. Therefore, DOE’s en-                violation has occurred, that the violation oc-
                                                                           forcement authority and policy will apply                 curred as alleged in the PNOV but that the
                                                                           only to civil penalties since decisions on                proposed civil penalty should be remitted in
                                                                           criminal violations are the responsibility of             whole or in part, or that the violation oc-
                                                                           the Department of Justice. However, referral              curred as alleged in the PNOV and that the
                                                                           of a case to the Department of Justice does               proposed civil penalty is appropriate not-
                                                                           not preclude DOE from taking civil enforce-               withstanding the asserted mitigating cir-
                                                                           ment action in accordance with this policy                cumstances. In the latter two instances, the
                                                                           statement. Such actions will be coordinated               Director will issue a Final Notice of Viola-
                                                                           with the Department of Justice to the extent              tion (FNOV) or an FNOV and Proposed Civil
                                                                           practicable.                                              Penalty.
                                                                                                                                       (c) An opportunity to challenge a proposed
                                                                                            IV. Responsibilities                     civil penalty either before an Administrative
                                                                             (a) The Director, as the principal enforce-             Law Judge or in a United States District
                                                                           ment officer of DOE, has been delegated the               Court is provided in the PAAA, 42 U.S.C.
                                                                           authority to:                                             2282a(c), and 10 CFR part 820 sets forth the
                                                                             (1) Conduct enforcement inspections, in-                procedures associated with an administra-
                                                                           vestigations, and conferences;                            tive hearing, should the contractor opt for
                                                                             (2) Issue Notices of Violations and proposed            that method of challenging the proposed
                                                                           civil penalties, Enforcement Letters, Con-                civil penalty. A formal administrative en-
                                                                           sent Orders, and subpoenas; and                           forcement proceeding pursuant to section 554
                                                                             (3) Issue orders to compel attendance and               of the Administrative Procedures Act is not
                                                                           disclosure of information or documents ob-                initiated until the DOE contractor against
                                                                           tained during an investigation or inspection.             which a civil penalty has been proposed re-
                                                                             (b) The NNSA Administrator, pursuant to                 quests an administrative hearing rather than
                                                                           section 3212 (b)(9) of Public Law 106–65 (codi-           waiving its right to contest the civil penalty
                                                                           fied at 50 U.S.C. 2402 (b)(9)), as amended, has           and paying it. However, it should be empha-
                                                                           authority over and responsibility for envi-               sized that DOE encourages the voluntary
                                                                           ronment, safety and health operations with-               resolution of a noncompliance situation at
                                                                           in NNSA and is authorized to sign, issue and              any time, either informally prior to the ini-
                                                                           serve the following actions that direct NNSA              tiation of an administrative proceeding or by
                                                                           contractors:                                              consent order after a formal proceeding has
                                                                             (1) Subpoenas;                                          begun.
                                                                             (2) Orders to compel attendance;
                                                                             (3) Disclosure of information or documents                           VI. Severity of Violations
                                                                           obtained during an investigation or inspec-                 (a) Violations of DOE Nuclear Safety Re-
                                                                           tion;                                                     quirements have varying degrees of safety
                                                                             (4) Preliminary Notices of Violations; and              significance. Therefore, the relative impor-
                                                                             (5) Final Notices of Violations.                        tance of each violation must be identified as
                                                                             The NNSA Administrator acts after con-                  the first step in the enforcement process.
                                                                           sideration of the Director’s recommendation.              Violations of DOE Nuclear Safety Require-
                                                                                                                                     ments are categorized in three levels of se-
                                                                                        V. Procedural Framework
                                                                                                                                     verity to identify their relative safety sig-
                                                                             (a) 10 CFR part 820 sets forth the proce-               nificance, and Notices of Violation are issued
                                                                           dures DOE will use in exercising its enforce-             for noncompliance which, when appropriate,
                                                                           ment authority, including the issuance of                 propose civil penalties commensurate with
                                                                           Notices of Violation and the resolution of                the severity level of the violation(s) in-
                                                                           contested enforcement actions in the event a              volved.
                                                                           DOE contractor elects to litigate contested                 (b) Severity Level I has been assigned to
                                                                           issues before an Administrative Law Judge.                violations that are the most significant and
                                                                             (b) Pursuant to 10 CFR 820.22, the Director             Severity Level III violations are the least
                                                                           initiates the civil penalty process by issuing            significant. Severity Level I is reserved for
                                                                           a Preliminary Notice of Violation and Pro-                violations of DOE Nuclear Safety Require-
                                                                           posed Civil Penalty (PNOV). The DOE con-                  ments which involve actual or high potential
                                                                           tractor is required to respond in writing to              for adverse impact on the safety of the pub-
                                                                           the PNOV, either admitting the violation                  lic or workers at DOE facilities. Severity
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                                                                           and waiving its right to contest the proposed             level II violations represent a significant
                                                                           civil penalty and paying it, admitting the                lack of attention or carelessness toward re-
                                                                           violation but asserting the existence of miti-            sponsibilities of DOE contractors for the pro-
                                                                           gating circumstances that warrant either                  tection of public or worker safety which
                                                                           the total or partial remission of the civil               could, if uncorrected, potentially lead to an

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                                                                           Pt. 820, App. A                                                        10 CFR Ch. III (1–1–10 Edition)
                                                                           adverse impact on public or worker safety at              given to each of these factors in arriving at
                                                                           DOE facilities. Severity Level III violations             the appropriate severity level will be depend-
                                                                           are less serious but are of more than minor               ent on the circumstances of each case.
                                                                           concern: i.e., if left uncorrected, they could              (f) DOE expects contractors to provide full,
                                                                           lead to a more serious concern. In some                   complete, timely, and accurate information
                                                                           cases, violations may be evaluated in the ag-             and reports. Accordingly, the severity level
                                                                           gregate and a single severity level assigned              of a violation involving either failure to
                                                                           for a group of violations.                                make a required report or notification to the
                                                                             (c) Isolated minor violations of DOE Nu-                DOE or an untimely report or notification,
                                                                           clear Safety Requirements will not be the                 will be based upon the significance of, and
                                                                           subject of formal enforcement action                      the circumstances surrounding, the matter
                                                                           through the issuance of a Notice of Viola-                that should have been reported. A contractor
                                                                           tion. However, these minor violations will be             will not normally be cited for a failure to re-
                                                                           identified as noncompliances and tracked to               port a condition or event unless the con-
                                                                           assure that appropriate corrective/remedial               tractor was actually aware, or should have
                                                                           action is taken to prevent their recurrence,              been aware of the condition or event which it
                                                                           and evaluated to determine if generic or spe-             failed to report.
                                                                           cific problems exist. If circumstances dem-
                                                                           onstrate that a number of related minor non-                          VII. Enforcement Conferences
                                                                           compliances have occurred in the same time                  (a) Should DOE determine, after comple-
                                                                           frame (e.g. all identified during the same as-
                                                                                                                                     tion of all assessment and investigation ac-
                                                                           sessment), or that related minor noncompli-
                                                                                                                                     tivities associated with a potential or al-
                                                                           ances have recurred despite prior notice to
                                                                                                                                     leged violation of DOE Nuclear Safety Re-
                                                                           the DOE contractor and sufficient oppor-
                                                                                                                                     quirements, that there is a reasonable basis
                                                                           tunity to correct the problem, DOE may
                                                                                                                                     to believe that a violation has actually oc-
                                                                           choose in its discretion to consider the non-
                                                                                                                                     curred, and the violation may warrant a civil
                                                                           compliances in the aggregate as a more seri-
                                                                                                                                     penalty or issuance of an enforcement order,
                                                                           ous violation warranting a Severity Level III
                                                                                                                                     DOE will normally hold an enforcement con-
                                                                           designation, a Notice of Violation and a pos-
                                                                                                                                     ference with the DOE contractor involved
                                                                           sible civil penalty.
                                                                             (d) The severity level of a violation will be           prior to taking enforcement action. DOE
                                                                           dependent, in part, on the degree of culpa-               may also elect to hold an enforcement con-
                                                                           bility of the DOE contractor with regard to               ference for potential violations which would
                                                                           the violation. Thus, inadvertent or negligent             not ordinarily warrant a civil penalty or en-
                                                                           violations will be viewed differently than                forcement order but which could, if repeated,
                                                                           those in which there is gross negligence, de-             lead to such action. The purpose of the en-
                                                                           ception or wilfulness. In addition to the sig-            forcement conference is to assure the accu-
                                                                           nificance of the underlying violation and                 racy of the facts upon which the preliminary
                                                                           level of culpability involved, DOE will also              determination to consider enforcement ac-
                                                                           consider the position, training and experi-               tion is based, discuss the potential or alleged
                                                                           ence of the person involved in the violation.             violations, their significance and causes, and
                                                                           Thus, for example, a violation may be                     the nature of and schedule for the DOE con-
                                                                           deemed to be more significant if a senior                 tractor’s corrective actions, determine
                                                                           manager of an organization is involved rath-              whether there are any aggravating or miti-
                                                                           er than a foreman or non-supervisory em-                  gating circumstances, and obtain other in-
                                                                           ployee. In this regard, while management in-              formation which will help determine the ap-
                                                                           volvement, direct or indirect, in a violation             propriate enforcement action.
                                                                           may lead to an increase in the severity level               (b) DOE contractors will be informed prior
                                                                           of a violation and proposed civil penalty, the            to a meeting when that meeting is consid-
                                                                           lack of such involvement will not constitute              ered to be an enforcement conference. Such
                                                                           grounds to reduce the severity level of a vio-            conferences are informal mechanisms for
                                                                           lation or mitigate a civil penalty. Allowance             candid pre-decisional discussions regarding
                                                                           of mitigation in such circumstances could                 potential or alleged violations and will not
                                                                           encourage lack of management involvement                  normally be open to the public. In cir-
                                                                           in DOE contractor activities and a decrease               cumstances for which immediate enforce-
                                                                           in protection of public and worker health                 ment action is necessary in the interest of
                                                                           and safety.                                               public or worker health and safety, such ac-
                                                                             (e) Other factors which will be considered              tion will be taken prior to the enforcement
                                                                           by DOE in determining the appropriate se-                 conference, which may still be held after the
                                                                           verity level of a violation are the duration of           necessary DOE action has been taken.
                                                                           the violation, the past performance of the
                                                                                                                                                   VIII. Enforcement Letter
                                                                           DOE contractor in the particular activity
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                                                                           area involved, whether the DOE contractor                   (a) In cases where DOE has decided not to
                                                                           had prior notice of a potential problem, and              conduct an investigation or inspection or
                                                                           whether there are multiple examples of the                issue a Preliminary Notice of Violation
                                                                           violation in the same time frame rather than              (PNOV), DOE may send an Enforcement Let-
                                                                           an isolated occurrence. The relative weight               ter to the contractor, signed by the Director.

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                                                                           Department of Energy                                                                       Pt. 820, App. A
                                                                           Enforcement Letters issued to NNSA con-                   Federal or State regulatory bodies having
                                                                           tractors will be coordinated with the Prin-               concurrent jurisdiction, e.g., instances which
                                                                           cipal Deputy Administrator of the NNSA                    involve NRC licensed entities which are also
                                                                           prior to issuance. The Enforcement Letter is              DOE contractors, and in which the NRC ex-
                                                                           intended to communicate the basis of the de-              ercises its own enforcement authority.
                                                                           cision not to pursue enforcement action for a               b. The nature and extent of the enforce-
                                                                           noncompliance. The Enforcement Letter is                  ment action is intended to reflect the seri-
                                                                           intended to inform contractors of the desired             ousness of the violation involved. For the
                                                                           level of nuclear safety performance. It may               vast majority of violations for which DOE
                                                                           be used when DOE concludes the specific                   assigns severity levels as described pre-
                                                                           noncompliance at issue is not of the level of             viously, a Notice of Violation will be issued,
                                                                           significance warranted to conduct an inves-               requiring a formal response from the recipi-
                                                                           tigation or inspection or for issuance of a               ent describing the nature of and schedule for
                                                                           PNOV. Even where a noncompliance may be                   corrective actions it intends to take regard-
                                                                           significant, the Enforcement Letter recog-                ing the violation. Administrative actions,
                                                                           nizes that the contractor’s actions may have              such as determination of award fees where
                                                                           attenuated the need for enforcement action.               DOE contracts provide for such determina-
                                                                           The Enforcement Letter will typically recog-              tions, will be considered separately from any
                                                                           nize how the contractor handled the cir-                  civil penalties that may be imposed under
                                                                           cumstances surrounding the noncompliance,                 this Enforcement Policy. Likewise, imposi-
                                                                           address additional areas requiring the con-               tion of a civil penalty will be based on the
                                                                           tractor’s attention, and address DOE’s expec-             circumstances of each case, unaffected by
                                                                           tations for corrective action.                            any award fee determination.
                                                                             (b) In general, Enforcement Letters com-                              1. Notice of Violation
                                                                           municate DOE’s expectations with respect to
                                                                           any aspect of the requirements contained in                 a. A Notice of Violation (either a Prelimi-
                                                                           the Department’s nuclear safety rules, in-                nary or Final Notice) is a document setting
                                                                           cluding identification and reporting of                   forth the conclusion of the DOE Office of Nu-
                                                                           issues, corrective actions, and implementa-               clear Safety and Environment that one or
                                                                           tion of the contractor’s nuclear safety pro-              more violations of DOE Nuclear Safety Re-
                                                                           gram. DOE might, for example, wish to rec-                quirements has occurred. Such a notice nor-
                                                                           ognize some action of the contractor that is              mally requires the recipient to provide a
                                                                           of particular benefit to nuclear safety per-              written response which may take one of sev-
                                                                           formance that is a candidate for emulation                eral positions described in Section V of this
                                                                           by other contractors. On the other hand,                  policy statement. In the event that the re-
                                                                           DOE may wish to bring a program short-                    cipient concedes the occurrence of the viola-
                                                                           coming to the attention of the contractor                 tion, it is required to describe corrective
                                                                           that, but for the lack of nuclear safety sig-             steps which have been taken and the results
                                                                           nificance of the immediate issue, might have              achieved; remedial actions which will be
                                                                           resulted in the issuance of a PNOV. An En-                taken to prevent recurrence; and the date by
                                                                           forcement Letter is not an enforcement ac-                which full compliance will be achieved.
                                                                           tion.                                                       b. DOE will use the Notice of Violation as
                                                                             (c) With respect to many noncompliances,                the standard method for formalizing the ex-
                                                                           DOE may decide not to send an Enforcement                 istence of a violation and, in appropriate
                                                                           Letter. When DOE decides that a contractor                cases as described in this section, the notice
                                                                           has appropriately corrected a noncompliance               of violation will be issued in conjunction
                                                                           or that the significance of the noncompli-                with the proposed imposition of a civil pen-
                                                                                                                                     alty. In certain limited instances, as de-
                                                                           ance is sufficiently low, it may close out its
                                                                                                                                     scribed in this section, DOE may refrain
                                                                           review simply through an annotation in the
                                                                                                                                     from the issuance of an otherwise appro-
                                                                           DOE     Noncompliance      Tracking   System
                                                                                                                                     priate Notice of Violation. However, a Notice
                                                                           (NTS). A closeout of a noncompliance with
                                                                                                                                     of Violation will virtually always be issued
                                                                           or without an Enforcement Letter may only
                                                                                                                                     for willful violations, if past corrective ac-
                                                                           take place after DOE has confirmed that cor-
                                                                                                                                     tions for similar violations have not been
                                                                           rective actions have been completed. Close-
                                                                                                                                     sufficient to prevent recurrence and there
                                                                           out of any NNSA contractor noncompliance
                                                                                                                                     are no other mitigating circumstances, or if
                                                                           will be coordinated with NNSA prior to
                                                                                                                                     the circumstances otherwise warrant in-
                                                                           closeout.                                                 creasing Severity Level III violations to a
                                                                                         IX. Enforcement Actions                     higher severity level.
                                                                                                                                       c. DOE contractors are not ordinarily cited
                                                                             a. This section describes the enforcement               for violations resulting from matters not
                                                                           sanctions available to DOE and specifies the              within their control, such as equipment fail-
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                                                                           conditions under which each may be used.                  ures that were not avoidable by reasonable
                                                                           The basic sanctions are Notices of Violation              quality assurance measures, proper mainte-
                                                                           and civil penalties. In determining whether               nance, or management controls. With regard
                                                                           to impose enforcement sanctions, DOE will                 to the issue of funding, however, DOE does
                                                                           consider enforcement actions taken by other               not consider an asserted lack of funding to

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                                                                           Pt. 820, App. A                                                       10 CFR Ch. III (1–1–10 Edition)
                                                                           be a justification for noncompliance with                                  2. Civil Penalty
                                                                           DOE Nuclear Safety Requirements.                            a. A civil penalty is a monetary penalty
                                                                           Should a contractor believe that a shortage               that may be imposed for violations of appli-
                                                                           of funding precludes it from achieving com-               cable DOE Nuclear Safety Requirements, in-
                                                                           pliance with one or more DOE Nuclear Safe-                cluding Compliance Orders. See 10 CFR
                                                                           ty Requirements, it must pursue one of two                820.20(b). Civil penalties are designed to em-
                                                                           alternative courses of action. First, it may              phasize the need for lasting remedial action,
                                                                           request, in writing, an exemption from the                deter future violations, and underscore the
                                                                           requirement(s) in question from the appro-                importance of DOE contractor self-identi-
                                                                           priate Secretarial Officer (SO), explicitly ad-           fication, reporting and correction of viola-
                                                                           dressing the criteria for exemptions set forth            tions of DOE Nuclear Safety Requirements.
                                                                           in 10 CFR 820.62. A justification for contin-               b. Absent mitigating circumstances as de-
                                                                           ued operation for the period during which                 scribed below, or circumstances otherwise
                                                                           the exemption request is being considered                 warranting the exercise of enforcement dis-
                                                                           should also be submitted. In such a case, the             cretion by DOE as described in this section,
                                                                           SO must grant or deny the request in writ-                civil penalties will be proposed for Severity
                                                                           ing, explaining the rationale for the decision.           Level I and II violations. Civil penalties will
                                                                           Second, if the criteria for approval of an ex-            be proposed for Severity Level III violations
                                                                           emption cannot be demonstrated, the con-                  which are similar to previous violations for
                                                                           tractor, in conjunction with the SO, must                 which the contractor did not take effective
                                                                           take appropriate steps to modify, curtail,                corrective action. ‘‘Similar’’ violations are
                                                                           suspend or cease the activities which cannot              those which could reasonably have been ex-
                                                                                                                                     pected to have been prevented by corrective
                                                                           be conducted in compliance with the DOE
                                                                                                                                     action for the previous violation. DOE nor-
                                                                           Nuclear Safety Requirement(s) in question.
                                                                                                                                     mally considers civil penalties only for simi-
                                                                             d. DOE expects the contractors which oper-              lar Severity Level III violations that occur
                                                                           ate its facilities to have the proper manage-             over a reasonable period of time to be deter-
                                                                           ment and supervisory systems in place to as-              mined at the discretion of DOE.
                                                                           sure that all activities at DOE facilities, re-             c. DOE will impose different base level
                                                                           gardless of who performs them, are carried                civil penalties considering the severity level
                                                                           out in compliance with all DOE Nuclear                    of the violation(s) by Price-Anderson indem-
                                                                           Safety Requirements. Therefore, contractors               nified contractors. Table 1 shows the daily
                                                                           are normally held responsible for the acts of             base civil penalties for the various cat-
                                                                           their employees and subcontractor employ-                 egories of severity levels. However, as de-
                                                                           ees in the conduct of activities at DOE facili-           scribed above in Section IV, the imposition
                                                                           ties. Accordingly, this policy should not be              of civil penalties will also take into account
                                                                           construed to excuse personnel errors.                     the gravity, circumstances, and extent of the
                                                                             e. Finally, certain contractors are explic-             violation or violations and, with respect to
                                                                           itly exempted from the imposition of civil                the violator, any history of prior similar vio-
                                                                           penalties pursuant to the provisions of the               lations and the degree of culpability and
                                                                           PAAA, 42 U.S.C. 2282a(d), for activities con-             knowledge.
                                                                           ducted at specified facilities. See 10 CFR                  d. Regarding the factor of ability of DOE
                                                                           820.20(c). In addition, in fairness to non-prof-          contractors to pay the civil penalties, it is
                                                                           it educational institutions, the Department               not DOE’s intention that the economic im-
                                                                           has determined that they should be likewise               pact of a civil penalty be such that it puts a
                                                                           exempted. See 10 CFR 820.20(d). However,                  DOE contractor out of business. Contract
                                                                                                                                     termination, rather than civil penalties, is
                                                                           compliance with DOE Nuclear Safety Re-
                                                                                                                                     used when the intent is to terminate these
                                                                           quirements is no less important for these fa-
                                                                                                                                     activities. The deterrent effect of civil pen-
                                                                           cilities than for other facilities in the DOE
                                                                                                                                     alties is best served when the amount of such
                                                                           complex which work with, store or dispose of              penalties takes this factor into account.
                                                                           radioactive materials. Indeed, the exempted               However, DOE will evaluate the relationship
                                                                           contractors conduct some of the most impor-               of affiliated entities to the contractor (such
                                                                           tant nuclear-related research and develop-                as parent corporations) when it asserts that
                                                                           ment activities performed for the Depart-                 it cannot pay the proposed penalty.
                                                                           ment. Therefore, in order to serve the pur-                 e. DOE will review each case involving a
                                                                           poses of this enforcement policy and to em-               proposed civil penalty on its own merits and
                                                                           phasize the importance the Department                     adjust the base civil penalty values upward
                                                                           places on compliance with all of its nuclear              or downward appropriately. As indicated
                                                                           safety requirements, DOE intends to issue                 above, Table 1 identifies the daily base civil
                                                                           Notices of Violation to the exempted con-                 penalty values for different severity levels.
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                                                                           tractors and non-profit educational institu-              After considering all relevant circumstances,
                                                                           tions when appropriate under this policy                  civil penalties may be escalated or mitigated
                                                                           statement, notwithstanding the statutory                  based upon the adjustment factors described
                                                                           and regulatory exemptions from the imposi-                below in this section. In no instance will a
                                                                           tion of civil penalties.                                  civil penalty for any one violation exceed

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                                                                           Department of Energy                                                                                                             Pt. 820, App. A
                                                                           the statutory limit. However, it should be                                                      related problems by DOE contractors has the
                                                                           emphasized that if the DOE contractor is or                                                     added benefit of allowing information which
                                                                           should have been aware of a violation and                                                       could prevent such problems at other facili-
                                                                           has not reported it to DOE and taken correc-                                                    ties in the DOE complex to be shared with
                                                                           tive action despite an opportunity to do so,                                                    all appropriate DOE contractors.
                                                                           each day the condition existed may be con-                                                        b. Pursuant to this enforcement philos-
                                                                           sidered as a separate violation and, as such,                                                   ophy, DOE will provide substantial incentive
                                                                           subject to a separate civil penalty. Further,                                                   for the early self-identification, reporting
                                                                           as described in this section, the duration of                                                   and prompt correction of problems which
                                                                           a violation will be taken into account in de-                                                   constitute, or could lead to, violations of
                                                                           termining the appropriate severity level of                                                     DOE Nuclear Safety Requirements. Thus, ap-
                                                                           the base civil penalty.                                                                         plication of the adjustment factors set forth
                                                                                                                                                                           below may result in no civil penalty being
                                                                                     TABLE 1—SEVERITY LEVEL BASE CIVIL                                                     assessed for violations that are identified,
                                                                                                PENALTIES                                                                  reported, and promptly and effectively cor-
                                                                                                                                                              Base civil
                                                                                                                                                                           rected by the DOE contractor.
                                                                                                                                                               penalty       c. On the other hand, ineffective programs
                                                                                                                                                               amount      for problem identification and correction are
                                                                                                                                                              (percent-
                                                                                                                                                               age of      unacceptable. Thus, for example, where a
                                                                                                        Severity level                                                     contractor fails to disclose and promptly
                                                                                                                                                              maximum
                                                                                                                                                              civil pen-   correct violations of which it was aware or
                                                                                                                                                               alty per
                                                                                                                                                              violation    should have been aware, substantial civil
                                                                                                                                                              per day)     penalties are warranted and may be sought,
                                                                                                                                                                           including the assessment of civil penalties
                                                                           I ..............................................................................         100    for continuing violations on a per day basis.
                                                                           II .............................................................................          50
                                                                           III ............................................................................          10      d. Further, in cases involving willfulness,
                                                                                                                                                                           flagrant DOE-identified violations, repeated
                                                                                                                                                                           poor performance in an area of concern, or
                                                                                                    3. Adjustment Factors                                                  serious breakdown in management controls,
                                                                             a. DOE’s enforcement program is not an                                                        DOE intends to apply its full statutory en-
                                                                           end in itself, but a means to achieve compli-                                                   forcement authority where such action is
                                                                           ance with DOE Nuclear Safety Require-                                                           warranted.
                                                                           ments, and civil penalties are not collected
                                                                           to swell the coffers of the United States                                                               4. Identification and Reporting
                                                                           Treasury, but to emphasize the importance
                                                                                                                                                                             Reduction of up to 50% of the base civil
                                                                           of compliance and to deter future violations.
                                                                                                                                                                           penalty shown in Table 1 may be given when
                                                                           The single most important goal of the DOE
                                                                                                                                                                           a DOE contractor identifies the violation
                                                                           enforcement program is to encourage early
                                                                                                                                                                           and promptly reports the violation to the
                                                                           identification and reporting of nuclear safe-
                                                                                                                                                                           DOE. In weighing this factor, consideration
                                                                           ty deficiencies and violations of DOE Nu-
                                                                                                                                                                           will be given to, among other things, the op-
                                                                           clear Safety Requirements by the DOE con-
                                                                                                                                                                           portunity available to discover the violation,
                                                                           tractors themselves rather than by DOE, and
                                                                           the prompt correction of any deficiencies                                                       the ease of discovery and the promptness and
                                                                           and violations so identified. DOE believes                                                      completeness of any required report. No con-
                                                                           that DOE contractors are in the best posi-                                                      sideration will be given to a reduction in
                                                                           tion to identify and promptly correct non-                                                      penalty if the DOE contractor does not take
                                                                           compliance with DOE Nuclear Safety Re-                                                          prompt action to report the problem to DOE
                                                                           quirements. DOE expects that these contrac-                                                     upon discovery, or if the immediate actions
                                                                           tors should have in place internal compli-                                                      necessary to restore compliance with DOE
                                                                           ance programs which will ensure the detec-                                                      Nuclear Safety Requirements or place the fa-
                                                                           tion, reporting and prompt correction of nu-                                                    cility or operation in a safe configuration
                                                                           clear safety-related problems that may con-                                                     are not taken.
                                                                           stitute, or lead to, violations of DOE Nuclear
                                                                                                                                                                             5. Self-Identification and Tracking Systems
                                                                           Safety Requirements before, rather than
                                                                           after, DOE has identified such violations.                                                        a. DOE strongly encourages contractors to
                                                                           Thus, DOE contractors will almost always be                                                     self-identify noncompliances with DOE Nu-
                                                                           aware of nuclear safety problems before they                                                    clear Safety Requirements before the non-
                                                                           are discovered by DOE. Obviously, public and                                                    compliances lead to a string of similar and
                                                                           worker health and safety is enhanced if defi-                                                   potentially more significant events or con-
                                                                           ciencies are discovered (and promptly cor-                                                      sequences. When a contractor identifies a
                                                                           rected) by the DOE contractor, rather than                                                      noncompliance through its own self-moni-
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                                                                           by DOE, which may not otherwise become                                                          toring activity, DOE will normally allow a
                                                                           aware of a deficiency until later on, during                                                    reduction in the amount of civil penalties,
                                                                           the course of an inspection, performance as-                                                    regardless of whether prior opportunities ex-
                                                                           sessment, or following an incident at the fa-                                                   isted for contractors to identify the non-
                                                                           cility. Early identification of nuclear safety-                                                 compliance. DOE will normally not allow a

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                                                                           Pt. 820, App. A                                                       10 CFR Ch. III (1–1–10 Edition)
                                                                           reduction in civil penalties for self-identi-             alties for self-identification, even if the un-
                                                                           fication if significant DOE intervention was              derlying noncompliances were reported to
                                                                           required to induce the contractor to report a             DOE. If a contractor simply reacts to events
                                                                           noncompliance.                                            that disclose potentially significant con-
                                                                             b. Self-identification of a noncompliance is            sequences or downplays noncompliances
                                                                           possibly the single most important factor in              which did not result in significant con-
                                                                           considering a reduction in the civil penalty              sequences to workers, the public, and the en-
                                                                           amount. Consideration of self-identification              vironment, such contractor actions do not
                                                                           is linked to, among other things, whether                 lead to the improvement in nuclear safety
                                                                           prior opportunities existed to discover the               contemplated by the Act.
                                                                           violation, and if so, the age and number of                 b. The key test is whether the contractor
                                                                           such opportunities; the extent to which prop-             reasonably could have detected any of the
                                                                           er contractor controls should have identified             underlying noncompliances that contributed
                                                                           or prevented the violation; whether dis-                  to the event. Examples of events that pro-
                                                                           covery of the violation resulted from a con-              vide opportunities to identify noncompli-
                                                                           tractor’s self-monitoring activity; the extent            ances include, but are not limited to:
                                                                           of DOE involvement in discovering the viola-                (1) prior notifications of potential prob-
                                                                           tion or in prompting the contractor to iden-              lems such as those from DOE operational ex-
                                                                           tify the violation; and the promptness and                perience publications or vendor equipment
                                                                           completeness of any required report. Self-                deficiency reports;
                                                                           identification is also considered by DOE in                 (2) normal surveillance, quality assurance
                                                                           deciding whether to pursue an investigation.              assessments, and post-maintenance testing;
                                                                             c. DOE has established a voluntary Non-                   (3) readily observable parameter trends;
                                                                           compliance Tracking System (NTS) which                    and
                                                                           allows contractors to elect to report non-                  (4) contractor employee or DOE observa-
                                                                                                                                     tions of potential safety problems. Failure to
                                                                           compliances. In the guidance document sup-
                                                                                                                                     utilize these types of events and activities to
                                                                           porting the NTS (DOE-HDBK-1089-95), DOE
                                                                                                                                     address noncompliances may result in higher
                                                                           has established reporting thresholds for re-
                                                                                                                                     civil penalty assessments or a DOE decision
                                                                           porting items of noncompliance of poten-
                                                                                                                                     not to reduce civil penalty amounts.
                                                                           tially greater safety significance into the
                                                                                                                                       c. For example, a critique of the event
                                                                           NTS. Contractors may, however, use their
                                                                                                                                     might find that one of the root causes was a
                                                                           own self-tracking systems to track non-
                                                                                                                                     lack of clarity in a Radiation Work Permit
                                                                           compliances below the reporting threshold.
                                                                                                                                     (RWP) which led to improper use of anti-con-
                                                                           This self-tracking is considered to be accept-            tamination clothing and resulting uptake of
                                                                           able self-reporting as long as DOE has access             contamination by the individual. DOE could
                                                                           to the contractor’s system and the contrac-               subsequently conclude that no reduction in
                                                                           tor’s system notes the item as a noncompli-               civil penalties for self-identification should
                                                                           ance with a DOE Nuclear Safety Require-                   be allowed since the event itself disclosed
                                                                           ment. For noncompliances that are below                   the inadequate RWP and the contractor
                                                                           the reportability thresholds, DOE will credit             could have, through proper independent as-
                                                                           contractor self-tracking as representing self-            sessment or by fostering a questioning atti-
                                                                           reporting. If an item is not reported in NTS              tude by its workers and supervisors, identi-
                                                                           but only tracked in the contractor’s system               fied the inadequate RWP before the event.
                                                                           and DOE subsequently finds the facts and                    d. Alternatively, if, following a self-dis-
                                                                           their safety significance have been signifi-              closing event, DOE found that the contrac-
                                                                           cantly mischaracterized, DOE will not credit              tor’s processes and procedures were adequate
                                                                           the internal tracking as representing appro-              and the contractor’s personnel generally be-
                                                                           priate self-reporting.                                    haved in a manner consistent with the con-
                                                                                                                                     tractor’s processes and procedures, DOE
                                                                                        6. Self-Disclosing Events
                                                                                                                                     could conclude that the contractor could not
                                                                             a. DOE expects contractors to demonstrate               have been reasonably expected to find the
                                                                           acceptance of responsibility for safety of the            single procedural noncompliance that led to
                                                                           public, workers, and the environment and to               the event and thus, might allow a reduction
                                                                           proactively identify noncompliance condi-                 in civil penalties.
                                                                           tions in their programs and processes. In de-
                                                                           ciding whether to reduce any civil penalty                 7. Corrective Action To Prevent Recurrence
                                                                           proposed for violations revealed by the oc-                 The promptness (or lack thereof) and ex-
                                                                           currence of a self-disclosing event, DOE will             tent to which the DOE contractor takes cor-
                                                                           consider the ease with which a contractor                 rective action, including actions to identify
                                                                           could have discovered the noncompliance                   root cause and prevent recurrence, may re-
                                                                           and the prior opportunities that existed to               sult in up to a 50% increase or decrease in
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                                                                           discover the noncompliance. When the occur-               the base civil penalty shown in Table 1. For
                                                                           rence of an event discloses noncompliances                example, very extensive corrective action
                                                                           that the contractor could have or should                  may result in reducing the proposed civil
                                                                           have identified before the event, DOE will                penalty as much as 50% of the base value
                                                                           not generally allow a reduction in civil pen-             shown in Table 1. On the other hand, the

                                                                                                                                522



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                                                                           Department of Energy                                                                       Pt. 820, App. A
                                                                           civil penalty may be increased as much as                   (1) It was identified by a DOE contractor as
                                                                           50% of the base value if initiation or correc-            a result of a formal effort such as a Safety
                                                                           tive action is not prompt or if the corrective            System Functional Inspection, Design Re-
                                                                           action is only minimally acceptable. In                   constitution program, or other program that
                                                                           weighing this factor, consideration will be               has a defined scope and timetable which is
                                                                           given to, among other things, the appro-                  being aggressively implemented and re-
                                                                           priateness, timeliness and degree of initia-              ported;
                                                                           tive associated with the corrective action.                 (2) Comprehensive corrective action has
                                                                           The comprehensiveness of the corrective ac-               been taken or is well underway within a rea-
                                                                           tion will also be considered, taking into ac-             sonable time following identification; and
                                                                           count factors such as whether the action is                 (3) It was not likely to be identified by rou-
                                                                           focused narrowly to the specific violation or             tine contractor efforts such as normal sur-
                                                                           broadly to the general area of concern.                   veillance or quality assurance activities.
                                                                                                                                       c. DOE will not issue a Notice of Violation
                                                                                8. DOE’s Contribution to a Violation                 for cases in which the violation discovered
                                                                                                                                     by the DOE contractor cannot reasonably be
                                                                             There may be circumstances in which a
                                                                                                                                     linked to the conduct of that contractor in
                                                                           violation of a DOE Nuclear Safety Require-
                                                                                                                                     the design, construction or operation of the
                                                                           ment results, in part or entirely, from a di-
                                                                                                                                     DOE facility involved, provided that prompt
                                                                           rection given by DOE personnel to a DOE
                                                                                                                                     and appropriate action is taken by the DOE
                                                                           contractor to either take, or forbear from
                                                                                                                                     contractor upon identification of the past
                                                                           taking an action at a DOE facility. In such
                                                                                                                                     violation to report to DOE and remedy the
                                                                           cases, DOE may refrain from issuing an
                                                                                                                                     problem.
                                                                           NOV, and may mitigate, either partially or
                                                                                                                                       d. DOE may refrain from issuing a Notice
                                                                           entirely, any proposed civil penalty, pro-                of Violation for an item of noncompliance
                                                                           vided that the direction upon which the DOE               that meets all of the following criteria:
                                                                           contractor relied is documented in writing,                 (1) It was promptly identified by the DOE
                                                                           contemporaneously with the direction. It                  nuclear entity;
                                                                           should be emphasized, however, that pursu-                  (2) It is normally classified at a Severity
                                                                           ant to 10 CFR 820.50, no interpretation of a              Level III;
                                                                           DOE Nuclear Safety Requirement is binding                   (3) It was promptly reported to DOE;
                                                                           upon DOE unless issued in writing by the                    (4) Prompt and appropriate corrective ac-
                                                                           General Counsel. Further, as discussed in                 tion will be taken, including measures to
                                                                           this section of this policy statement, lack of            prevent recurrence; and
                                                                           funding by itself will not be considered as a               (5) It was not a willful violation or a viola-
                                                                           mitigating factor in enforcement actions.                 tion that could reasonably be expected to
                                                                                        9. Exercise of Discretion                    have been prevented by the DOE contractor’s
                                                                                                                                     corrective action for a previous violation.
                                                                             Because DOE wants to encourage and sup-                   e. DOE may refrain from issuing a Notice
                                                                           port DOE contractor initiative for prompt                 of Violation for an item of noncompliance
                                                                           self-identification, reporting and correction             that meets all of the following criteria:
                                                                           of problems, DOE may exercise discretion as                 (1) It was an isolated Severity Level III
                                                                           follows:                                                  violation identified during a Tiger Team in-
                                                                             a. In accordance with the previous discus-              spection conducted by the Office of Health,
                                                                           sion, DOE may refrain from issuing a civil                Safety and Security during an inspection or
                                                                           penalty for a violation which meets all of the            integrated performance assessment con-
                                                                           following criteria:                                       ducted by the Office of Nuclear Safety and
                                                                             (1) The violation is promptly identified and            Environment, or during some other DOE as-
                                                                           reported to DOE before DOE learns of it.                  sessment activity.
                                                                             (2) The violation is not willful or a viola-              (2) The identified noncompliance was prop-
                                                                           tion that could reasonably be expected to                 erly reported by the contractor upon dis-
                                                                           have been prevented by the DOE contractor’s               covery.
                                                                           corrective action for a previous violation.                 (3) The contractor initiated or completed
                                                                             (3) The DOE contractor, upon discovery of               appropriate assessment and corrective ac-
                                                                           the violation, has taken or begun to take                 tions within a reasonable period, usually be-
                                                                           prompt and appropriate action to correct the              fore the termination of the onsite inspection
                                                                           violation.                                                or integrated performance assessment.
                                                                             (4) The DOE contractor has taken, or has                  (4) The violation is not willful or one which
                                                                           agreed to take, remedial action satisfactory              could reasonably be expected to have been
                                                                           to DOE to preclude recurrence of the viola-               prevented by the DOE contractor’s correc-
                                                                           tion and the underlying conditions which                  tive action for a previous violation.
                                                                           caused it.                                                  f. In situations where corrective actions
WReier-Aviles on DSKGBLS3C1PROD with CFR




                                                                             b. DOE may refrain from proposing a civil               have been completed before termination of
                                                                           penalty for a violation involving a past prob-            an inspection or assessment, a formal re-
                                                                           lem, such as in engineering design or instal-             sponse from the contractor is not required
                                                                           lation, that meets all of the following cri-              and the inspection or integrated performance
                                                                           teria:                                                    assessment report serves to document the

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                                                                           Pt. 820, App. A                                                       10 CFR Ch. III (1–1–10 Edition)
                                                                           violation and the corrective action. However,             service which could create or result in a sub-
                                                                           in all instances, the contractor is required to           stantial safety hazard.
                                                                           report the noncompliance through estab-                     (b) DOE will conduct audits and assess-
                                                                           lished reporting mechanisms so the non-                   ments of its contractors to determine wheth-
                                                                           compliance issue and any corrective actions               er they are ensuring that subcontractors and
                                                                           can be properly tracked and monitored.                    suppliers are meeting their contractual obli-
                                                                             g. If DOE initiates an enforcement action               gations with regard to quality of products or
                                                                           for a violation at a Severity Level II or III             services that could have an adverse effect on
                                                                           and, as part of the corrective action for that            public or worker radiological safety, and en-
                                                                           violation, the DOE contractor identifies                  sure that DOE contractors have in place ade-
                                                                           other examples of the violation with the                  quate programs to determine whether prod-
                                                                           same root cause, DOE may refrain from ini-                ucts or services supplied to them for DOE fa-
                                                                           tiating an additional enforcement action. In              cilities meet applicable DOE requirements
                                                                           determining whether to exercise this discre-              and that substandard products or services
                                                                           tion, DOE will consider whether the DOE                   are not used by Price-Anderson indemnified
                                                                           contractor acted reasonably and in a timely               contractors at the facilities they operate for
                                                                           manner appropriate to the safety signifi-                 DOE. As part of the effort of ensuring that
                                                                           cance of the initial violation, the com-                  contractual and regulatory requirements are
                                                                           prehensiveness of the corrective action,                  met, DOE may also audit or assess sub-
                                                                           whether the matter was reported, and wheth-               contractors and suppliers. These assessments
                                                                           er the additional violation(s) substantially              could include examination of the quality as-
                                                                           change the safety significance or character               surance programs and their implementation
                                                                           of the concern arising out of the initial vio-            by the subcontractors and suppliers through
                                                                           lation.                                                   examination of product quality.
                                                                             h. It should be emphasized that the pre-                  (c) When audits or assessments determine
                                                                                                                                     that subcontractors or suppliers have failed
                                                                           ceding paragraphs are solely intended to be
                                                                                                                                     to comply with applicable DOE Nuclear Safe-
                                                                           examples indicating when enforcement dis-
                                                                                                                                     ty Requirements or to fulfill contractual
                                                                           cretion may be exercised to forego the
                                                                                                                                     commitments designed to ensure the quality
                                                                           issuance of a civil penalty or, in some cases,
                                                                                                                                     of a safety significant product or service, en-
                                                                           the initiation of any enforcement action at
                                                                                                                                     forcement action will be taken. Notices of
                                                                           all. However, notwithstanding these exam-
                                                                                                                                     Violations and civil penalties will be issued,
                                                                           ples, a civil penalty may be proposed or No-
                                                                                                                                     as appropriate, for DOE contractor failures
                                                                           tice of Violation issued when, in DOE’s judg-
                                                                                                                                     to ensure that their subcontractors and sup-
                                                                           ment, such action is warranted on the basis
                                                                                                                                     pliers provide products and services that
                                                                           of the circumstances of an individual case.
                                                                                                                                     meet applicable DOE requirements. Notices
                                                                           X. Procurement of Products or Services and the            of Violations and civil penalties will also be
                                                                                       Reporting of Defects                          issued to subcontractors and suppliers of
                                                                                                                                     DOE contractors which fail to comply with
                                                                             (a) DOE’s enforcement policy is also appli-             the reporting requirements set forth in any
                                                                           cable to subcontractors and suppliers to DOE              other applicable DOE Nuclear Safety Re-
                                                                           Price-Anderson      indemnified    contractors.           quirements.
                                                                           Through procurement contracts with these
                                                                           DOE contractors, subcontractors and sup-                    XI. Inaccurate and Incomplete Information
                                                                           pliers are generally required to have quality               (a) A violation of DOE Nuclear Safety Re-
                                                                           assurance programs that meet applicable                   quirements for failure to provide complete
                                                                           DOE Nuclear Safety Requirements. Suppliers                and accurate information to DOE, 10 CFR
                                                                           of products or services provided in support of            820.11, can result in the full range of enforce-
                                                                           or for use in DOE facilities operated by                  ment sanctions, depending upon the cir-
                                                                           Price-Anderson indemnified contractors are                cumstances of the particular case and con-
                                                                           subject to certain requirements designed to               sideration of the factors discussed in this
                                                                           ensure the high quality of the products or                section. Violations involving inaccurate or
                                                                           services supplied to DOE facilities that                  incomplete information or the failure to pro-
                                                                           could, if deficient, adversely affect public or           vide significant information identified by a
                                                                           worker safety. DOE regulations require that               DOE contractor normally will be categorized
                                                                           DOE be notified whenever a DOE contractor                 based on the guidance in section VI, ‘‘Sever-
                                                                           obtains information reasonably indicating                 ity of Violations’’.
                                                                           that a DOE facility (including its structures,              (b) DOE recognizes that oral information
                                                                           systems and components) which conducts ac-                may in some situations be inherently less re-
                                                                           tivities subject to the provisions of the                 liable than written submittals because of the
                                                                           Atomic Energy Act of 1954, as amended or                  absence of an opportunity for reflection and
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                                                                           DOE Nuclear Safety Requirements either                    management review. However, DOE must be
                                                                           fails to comply with any provision of the                 able to rely on oral communications from of-
                                                                           Atomic Energy Act or any applicable DOE                   ficials of DOE contractors concerning sig-
                                                                           Nuclear Safety Requirement, or contains a                 nificant information. In determining wheth-
                                                                           defect or has been supplied with a product or             er to take enforcement action for an oral

                                                                                                                                524



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                                                                           Department of Energy                                                                       Pt. 820, App. A
                                                                           statement, consideration will be given to                   (f) The failure to correct inaccurate or in-
                                                                           such factors as                                           complete information that the DOE con-
                                                                             (b)(1) The degree of knowledge that the                 tractor does not identify as significant nor-
                                                                           communicator should have had regarding the                mally will not constitute a separate viola-
                                                                           matter in view of his or her position, train-             tion. However, the circumstances sur-
                                                                           ing, and experience;                                      rounding the failure to correct may be con-
                                                                             (b)(2) The opportunity and time available               sidered relevant to the determination of en-
                                                                           prior to the communication to assure the ac-              forcement action for the initial inaccurate
                                                                           curacy or completeness of the information;                or incomplete statement. For example, an
                                                                             (b)(3) The degree of intent or negligence, if           unintentionally inaccurate or incomplete
                                                                           any, involved;                                            submission may be treated as a more severe
                                                                             (b)(4) The formality of the communication;
                                                                                                                                     matter if a DOE contractor later determines
                                                                             (b)(5) The reasonableness of DOE reliance
                                                                                                                                     that the initial submission was in error and
                                                                           on the information;
                                                                             (b)(6) The importance of the information                does not correct it or if there were clear op-
                                                                           that was wrong or not provided; and                       portunities to identify the error.
                                                                             (b)(7) The reasonableness of the expla-
                                                                                                                                      XII. Secretarial Notification and Consultation
                                                                           nation for not providing complete and accu-
                                                                           rate information.                                           The Secretary will be provided written no-
                                                                             (c) Absent gross negligence or willfulness,             tification of all enforcement actions involv-
                                                                           an incomplete or inaccurate oral statement                ing proposed civil penalties. The Secretary
                                                                           normally will not be subject to enforcement               will be consulted prior to taking action in
                                                                           action unless it involves significant informa-            the following situations:
                                                                           tion provided by an official of a DOE con-                  a. Proposals to impose civil penalties in an
                                                                           tractor. However, enforcement action may                  amount equal to or greater than the statu-
                                                                           be taken for an unintentionally incomplete
                                                                                                                                     tory limit;
                                                                           or inaccurate oral statement provided to
                                                                           DOE by an official of a DOE contractor or                   b. Any proposed enforcement action that
                                                                           others on behalf of the DOE contractor, if a              involves a Severity Level I violation;
                                                                           record was made of the oral information and                 c. Any action the Director believes war-
                                                                           provided to the DOE contractor thereby per-               rants the Secretary’s involvement; or
                                                                           mitting an opportunity to correct the oral                  d. Any proposed enforcement action on
                                                                           information, such as if a transcript of the               which the Secretary asks to be consulted.
                                                                           communication or meeting summary con-
                                                                           taining the error was made available to the                   XIII. Whistleblower Enforcement Policy
                                                                           DOE contractor and was not subsequently                     a. DOE contractors may not retaliate
                                                                           corrected in a timely manner.
                                                                                                                                     against any employee because the employee
                                                                             (d) When a DOE contractor has corrected
                                                                                                                                     has disclosed information, participated in
                                                                           inaccurate or incomplete information, the
                                                                                                                                     activities or refused to participate in activi-
                                                                           decision to issue a citation for the initial in-
                                                                           accurate or incomplete information nor-                   ties listed in 10 CFR 708.5 (a)–(c) as provided
                                                                           mally will be dependent on the cir-                       by 10 CFR 708.43. DOE contractor employees
                                                                           cumstances, including the ease of detection               may seek remedial relief for allegations of
                                                                           of the error, the timeliness of the correction,           retaliation from the DOE Office of Hearings
                                                                           whether DOE or the DOE contractor identi-                 and Appeals (OHA) under 10 CFR part 708
                                                                           fied the problem with the communication,                  (Part 708) or from the Department of Labor
                                                                           and whether DOE relied on the information                 (DOL) under sec. 211 of the Energy Reorga-
                                                                           prior to the correction. Generally, if the                nization Act (sec. 211), implemented in 29
                                                                           matter was promptly identified and cor-                   CFR part 24.
                                                                           rected by the DOE contractor prior to reli-                 b. An act of retaliation by a DOE con-
                                                                           ance by DOE, or before DOE raised a ques-                 tractor, proscribed under 10 CFR 708.43, that
                                                                           tion about the information, no enforcement                results from a DOE contractor employee’s
                                                                           action will be taken for the initial inac-                involvement in an activity listed in 10 CFR
                                                                           curate or incomplete information. On the                  708.5(a)–(c) concerning nuclear safety in con-
                                                                           other hand, if the misinformation is identi-              nection with a DOE nuclear activity, may
                                                                           fied after DOE relies on it, or after some                constitute a violation of a DOE Nuclear
                                                                           question is raised regarding the accuracy of              Safety Requirement under 10 CFR part 820
                                                                           the information, then some enforcement ac-                (Part 820). The retaliation may be subject to
                                                                           tion normally will be taken even if it is in              the investigatory and adjudicatory proce-
                                                                           fact corrected.                                           dures of both Part 820 and Part 708. The same
                                                                             (e) If the initial submission was accurate              facts that support remedial relief to employ-
                                                                           when made but later turns out to be erro-                 ees under Part 708 may be used by the Direc-
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                                                                           neous because of newly discovered informa-                tor of the Office of Enforcement (Director) to
                                                                           tion or advance in technology, a citation                 support issuance of a Preliminary Notice of
                                                                           normally would not be appropriate if, when                Violation (PNOV), a Final Notice of Viola-
                                                                           the new information became available, the                 tion (FNOV), and assessment of civil pen-
                                                                           initial submission was corrected.                         alties. 10 CFR 820.24–820.25.

                                                                                                                                525



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                                                                           Pt. 824                                                               10 CFR Ch. III (1–1–10 Edition)
                                                                             c. When an employee files a complaint                   tions for willful or intentional violations of
                                                                           with DOL under sec. 211 and DOL collects in-              DOE rules, regulations, orders or Federal
                                                                           formation relating to allegations of DOE                  statutes which, if proven, would warrant
                                                                           contractor retaliation against a contractor               criminal referrals to the U.S. Department of
                                                                           employee for actions taken concerning nu-                 Justice for prosecutorial review; and (2)
                                                                           clear safety, the Director may use this infor-            cases where an alleged retaliation suggests
                                                                           mation as a basis for initiating enforcement              widespread, high-level managerial involve-
                                                                           action by issuing a PNOV. 10 CFR 820.24.                  ment and raises significant public health and
                                                                           DOE may consider information collected in                 safety concerns.
                                                                           the DOL proceedings to determine whether                    j. When the Director undertakes an inves-
                                                                           the retaliation may be related to a con-                  tigation of an allegation of DOE contractor
                                                                           tractor employee’s action concerning a DOE                retaliation against an employee under Part
                                                                           nuclear activity.                                         820, the Director will apprise persons inter-
                                                                             d. The Director may also use DOL informa-               viewed and interested parties that the inves-
                                                                           tion to support the determination that a                  tigative activity is being taken pursuant to
                                                                           contractor has violated or is continuing to               the nuclear safety procedures of Part 820 and
                                                                           violate the nuclear safety requirements                   not pursuant to the procedures of Part 708.
                                                                           against contractor retaliation and to issue                 k. At any time, the Director may begin an
                                                                           civil penalties or other appropriate remedy               investigation of a noncompliance of the sub-
                                                                           in a FNOV. 10 CFR 820.25.                                 stantive nuclear safety rules based on the
                                                                             e. The Director will have discretion to give            underlying nuclear safety concerns raised by
                                                                           appropriate weight to information collected               the employee regardless of the status of com-
                                                                           in DOL and OHA investigations and pro-                    pletion of any related whistleblower retalia-
                                                                           ceedings. In deciding whether additional in-              tion proceedings. The nuclear safety rules in-
                                                                           vestigation or information is needed, the Di-             clude: 10 CFR part 830 (nuclear safety man-
                                                                           rector will consider the extent to which the              agement); 10 CFR part 835 (occupational ra-
                                                                           facts in the proceedings have been adju-                  diation protection); and 10 CFR part 820.11
                                                                           dicated as well as any information presented
                                                                                                                                     (information accuracy requirements).
                                                                           by the contractor. In general, the Director
                                                                           may initiate an enforcement action without                [58 FR 43692, Aug. 17, 1993, as amended at 62
                                                                           additional investigation or information.                  FR 52481, Oct. 8, 1997; 65 FR 15220, Mar. 22,
                                                                             f. Normally, the Director will await the                2000; 71 FR 68732, Nov. 28, 2006; 72 FR 31921,
                                                                           completion of a Part 708 proceeding before                June 8, 2007]
                                                                           OHA or a sec. 211 proceeding at DOL before
                                                                           deciding whether to take any action, includ-
                                                                           ing an investigation under Part 820 with re-              PART 824—PROCEDURAL RULES
                                                                           spect to alleged retaliation. A Part 708 or                 FOR THE ASSESSMENT OF CIVIL
                                                                           sec. 211 proceeding would be considered com-                PENALTIES FOR CLASSIFIED IN-
                                                                           pleted when there is either a final decision or             FORMATION SECURITY VIOLA-
                                                                           a settlement of the retaliation complaint, or
                                                                           no additional administrative action is avail-               TIONS
                                                                           able.
                                                                             g. DOE encourages its contractors to co-                Sec.
                                                                           operate in resolving whistleblower com-                   824.1 Purpose and scope.
                                                                           plaints raised by contractor employees in a               824.2 Applicability.
                                                                           prompt and equitable manner. Accordingly,                 824.3 Definitions.
                                                                           in deciding whether to initiate an enforce-               824.4 Civil penalties.
                                                                           ment action, the Director will take into ac-              824.5 Investigations.
                                                                           count the extent to which a contractor co-                824.6 Preliminary notice of violation.
                                                                           operated in a Part 708 or sec. 211 proceeding,            824.7 Final notice of violation.
                                                                           and, in particular, whether the contractor                824.8 Hearing.
                                                                           resolved the matter promptly without the                  824.9 Hearing Counsel.
                                                                           need for an adjudication hearing.                         824.10 Hearing Officer.
                                                                             h. In considering whether to initiate an en-
                                                                                                                                     824.11 Rights of the person at the hearing.
                                                                           forcement action and, if so, what remedy is
                                                                                                                                     824.12 Conduct of the hearing.
                                                                           appropriate, the Director will also consider
                                                                                                                                     824.13 Initial decision.
                                                                           the egregiousness of the particular case in-
                                                                                                                                     824.14 Special procedures.
                                                                           cluding the level of management involved in
                                                                           the alleged retaliation and the specificity of            824.15 Collection of civil penalties.
                                                                           the acts of retaliation.                                  824.16 Direction to NNSA contractors.
                                                                             i. In egregious cases, the Director has the             APPENDIX A TO PART 824—GENERAL STATE-
                                                                           discretion to proceed with an enforcement                     MENT OF ENFORCEMENT POLICY
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                                                                           action, including an investigation with re-
                                                                                                                                       AUTHORITY: 42 U.S.C. 2201, 2282b, 7101 et seq.,
                                                                           spect to alleged retaliation irrespective of
                                                                                                                                     50 U.S.C. 2401 et seq.
                                                                           the completion status of the Part 708 or sec.
                                                                           211 proceeding. Egregious cases would in-                   SOURCE: 70 FR 3607, Jan. 26, 2005, unless
                                                                           clude: (1) Cases involving credible allega-               otherwise noted.

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