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pleading or document is served by ex- file a special report providing informapress 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 Official except as permitted by this sec- cial who issues a subpoena or SRO purtion. 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 shall be decided as soon as practicable.
ficial who issued the document. If the
subpoena or SRO is not modified or reIf 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 certification is dismissed. The Secretary may
the person upon whom the document
was served shall comply with the subdecide 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 adminiscer 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
must be made by registered or certified tain information or evidence for the
mail. full and complete investigation of any 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 requester 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 subence. 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 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 Ofsubject to the jurisdiction of DOE to ficial issuing the subpoena shall make 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 privisuant to this section, refuses or fails to lege, and an identification of the percomply with any provision of the sub- son whose privilege is being asserted. poena or SRO, an action may be com (j) Statements/testimony. menced in the United States District (1) If a person's statement/testimony Court to enforce the subpoena or SRO. is taken pursuant to a subpoena, the
(h) Certification. (1) Documents pro- DOE Official shall determine whether duced in response to a subpoena shall the statement/testimony shall be rebe accompanied by the sworn certifi- corded and the means by which it is recation, under penalty of perjury, of the corded. person to whom the subpoena was di- (2) A person whose statement/testirected or his authorized agent that a mony is recorded may procure a copy diligent search has been made for each of the transcript by making a written document responsive to the subpoena, request for a copy and paying the apand to the best of his knowledge, infor- propriate fees. Upon proper identificamation, and belief all such documents tion, any potential witness or his atresponsive to the subpoena are being torney has the right to inspect the offiproduced unless withheld on the cial transcript of the witness' own grounds of privilege pursuant to para- statement or testimony. graph (i) of this section.
(k) Sequestration. The DOE Official (2) Any information furnished in re- may sequester any person who fursponse to an SRO shall be accompanied nishes documents or gives testimony. by the sworn certification under pen Unless permitted by the DOE Official, alty of perjury of the person to whom neither a witness nor his attorney shall it was directed or his authorized agent be present during the examination of who actually provides the information any other witnesses. that to the best of his knowledge, in- (1) Attorney. (1) Any person whose formation and belief a diligent effort statement or testimony is taken may has been made to provide all informa be accompanied, represented and adtion required by the SRO, and all infor vised by his attorney; provided that, if mation furnished is true, complete, and the witness claims a privilege to refuse correct unless withheld on grounds of to answer a question on the grounds of privilege pursuant to paragraph (i) of self-incrimination, the witness must this section.
assert the privilege personally. (3) If any document responsive to a (2) The DOE Official shall take all subpoena is not produced or any infor- necessary action to regulate the course mation required by an SRO is not fur- of testimony and to avoid delay and nished, the certification shall include a prevent or restrain contemptuous or statement setting forth every reason obstructionist conduct or contempfor failing to comply with the subpoena tuous language. The DOE Official may or SRO.
take actions as the circumstances may (i) Withheld information. If a person to warrant in regard to any instances whom a subpoena or SRO is directed where any attorney refuses to comply withholds any document or informa with directions or provisions of this tion because of a claim of attorney-cli section. ent or other privilege, the person submitting the certification required by
$ 820.9 Special assistant. paragraph (h) of this section also shall A DOE Official may appoint a person submit a written list of the documents to serve as a special assistant to assist or the information withheld indicating the DOE Official in the conduct of any a description of each document or in- proceeding under this part. Such apformation, the date of the document, pointment may occur at any approeach person shown on the document as priate time. A special assistant shall be having received a copy of the docu- subject to the disqualification proviment, each person shown on the docu- sions in 8820.5. A special assistant may ment as having prepared or been sent perform those duties assigned by the
DOE Official, including but not limited to, serving as technical interrogators, technical advisors and special master.
8820.12 Classified, confidential, and
controlled information (a) General rule. The DOE Official in charge of a proceeding under this part may utilize any procedures deemed appropriate to safeguard and prevent disclosure of classified, confidential, and controlled information, including Restricted Data and National Security Information, to unauthorized persons, with minimum impairment of rights and obligations under this part.
(b) Obligation to protect restricted information. Nothing in this part shall relieve any person from safeguarding classified, confidential, and controlled information, including Restricted Data or National Security Information, in accordance with the applicable provisions of federal statutes and the rules, regulations, and orders of any federal agency.
$ 820.10 Office of the docketing clerk.
(a) Docket. The Docketing Clerk shall maintain a docket for enforcement actions commencing with the issuance of a Preliminary Notice of Violation, interpretations issued pursuant to subpart D of this part, exemptions issued pursuant to subpart E of this part, and any other matters designated by the Secretary. A docket for an enforcement action shall contain all documents required to be filed in the proceeding.
(b) Public inspection. Subject to the provisions of law restricting the public disclosure of certain information, any person may, during Department business hours, inspect and copy any document filed with the Docketing Clerk. The cost of duplicating documents shall be borne by the person seeking copies of such documents. The DOE Official may waive this cost in appropriate cases.
(c) Transcript. Except as otherwise provided in this part, after the filing of a Preliminary Notice of Violation, all hearings, conferences, and other meetings in the enforcement process shall be transcribed verbatim. A copy of the transcript shall be filed with the Docketing Clerk promptly. The Docketing Clerk shall serve all participants with notice of the availability of the transcript and shall furnish the participants with a copy of the transcript upon payment of the cost of reproduction, unless a participant can show that the cost is unduly burdensome.
Subpart B-Enforcement Process $ 820.20 Purpose and scope.
(a) Purpose. This subpart establishes the procedures for investigating the nature and extent of violations of the DOE Nuclear Safety Requirements, for determining, whether a violation has occurred, for imposing an appropriate remedy, and for adjudicating the assessment of a civil penalty.
(b) Basis for civil penalties. DOE may assess civil penalties against any person subject to the provisions of this part who has entered into an agreement of indemnification under 42 U.S.C. 2210(d) (or any subcontractor or supplier thereto), unless exempted from civil penalties as provided in paragraph (c) of this section, on the basis of a violation of:
(1) Any DOE Nuclear Safety Requirement set forth in the Code of Federal Regulations;
(2) Any Compliance Order issued pursuant to subpart C of this part; or
(3) Any program, plan or other provision required to implement any requirement or order identified in paragraphs (b)(1) or (b)(2) of this section.
(c) Eremptions. The following contractors, and subcontractors and suppliers thereto, are exempt from the assessment of civil penalties under this
8820.11 Information requirements.
(a) Any information pertaining to a nuclear activity provided to DOE by any person or maintained by any person for inspection by DOE shall be complete and accurate in all material respects.
(b) No person involved in a DOE nuclear activity shall conceal or destroy any information concerning a violation of a DOE Nuclear Safety Requirement, a Nuclear Statute, or the Act.
subpart with respect to the activities specified below:
(1) The University of Chicago for activities associated with Argonne National Laboratory;
(2) The University of California for activities associated with Los Alamos National Laboratory, Lawrence Livermore National Laboratory, and Lawrence Berkeley National Laboratory;
(3) American Telephone and Telegraph Company and its subsidiaries for activities associated with Sandia National Laboratory;
(4) University Research Association, Inc. for activities associated with FERMI National Laboratory;
(5) Princeton University for activities associated with Princeton Plasma Physics Laboratory;
(6) The Associated Universities, Inc. for activities associated with the Brookhaven National Laboratory, and
(7) Battelle Memorial Institute for activities associated with Pacific Northwest Laboratory.
(d) Nonprofit educational institutions. Any educational institution that is considered nonprofit under the United States Internal Revenue Code shall receive automatic remission of any civil penalty assessed under this part.
general purpose of the investigation or inspection.
(d) Information or documents that are obtained during any investigation or inspection shall not be disclosed unless the Director directs or authorizes the public disclosure of the investigation. Upon such authorization, the information or documents are a matter of public record and disclosure is not precluded by the Freedom of Information Act, 5 U.S.C. 552 and 10 CFR part 1004. A request for confidential treatment of information for purposes of the Freedom of Information Act shall not prevent disclosure by the Director if disclosure is determined to be in the public interest and otherwise permitted or required by law.
(e) During the course of an investigation or inspection any person may submit at any time any document, statement of facts or memorandum of law for the purpose of explaining the person's position or furnish information which the person considers relevant to a matter or activity under investigation or inspection.
(f) If facts disclosed by an investigation or inspection indicate that further action is unnecessary or unwarranted, the investigation may be closed without prejudice to further investigation or inspection by the Director at any time that circumstances so warrant.
8 820.21 Investigations.
(a) The Director may initiate and conduct investigations and inspections relating to the scope, nature and extent of compliance by a person with the Act and the DOE Nuclear Safety Requirements and take such action as he deems necessary and appropriate to the conduct of the investigation or inspection, including any action pursuant to $820.8.
(b) Any person may request the Director to initiate an investigation or inspection pursuant to paragraph (a) of this section. A request for an investigation or inspection shall set forth the subject matter or activity to be investigated or inspected as fully as possible and include supporting documentation and information. No particular forms or procedures are required.
(c) Any person who is requested to furnish documentary evidence, information or testimony in an investigation or during an inspection shall be informed, upon written request, of the
$ 820.22 Informal conference.
The Director may convene an informal conference to discuss any situation that might be a violation of the Act or a DOE Nuclear Safety Requirement, its significance and cause, any correction taken or not taken by the person, any mitigating or aggravating circumstances, and any other useful information. The Director may compel a person to attend the conference. This conference will not normally be open to the public and there shall be no transcript.
$ 820.23 Consent order.
(a) Settlement policy. DOE encourages settlement of an enforcement proceeding at any time if the settlement is consistent with the objectives of the Act and the DOE Nuclear Safety Requirements. The Director and a person
may confer at any time concerning set- actions are necessary by or available to tlement. These settlement conferences respondent. shall not be open to the public and (b) Within 30 days after the filing of there shall be no transcript.
a Preliminary Notice of Violation, the (b) Consent order. Notwithstanding respondent shall file a reply. any other provision of this part, DOE (C) The reply shall be in writing and may at any time resolve any or all signed by the person filing it. The reply issues in an outstanding enforcement shall contain a statement of all relproceeding with a Consent Order. A evant facts pertaining to the situation Consent Order must be signed by the that is the subject of the Notice. The Director and the person who is its sub- reply shall state any facts, explaject, or a duly authorized representa nations and arguments which support a tive, must indicate agreement to the denial that a violation has occurred as terms contained therein and must be alleged; demonstrate any extenuating filed. A Consent Order need not con- circumstances or other reason why the stitute an admission by any person proposed remedy should not be imposed that the Act or a DOE Nuclear Safety or should be mitigated; and furnish full Requirement has been violated, nor and complete answers to the questions need it constitute a finding by the DOE set forth in the Notice. Copies of all that such person has violated the Act relevant documents shall be submitted or a DOE Nuclear Safety Requirement. with the reply. The reply shall include A Consent Order shall, however, set a discussion of the relevant authorities forth the relevant facts which form the which support the position asserted, inbasis for the Order and what remedy, if cluding rulings, regulations, interpreany, is imposed.
tations, and previous decisions issued (c) Effect on enforcement adjudication. by DOE. If a Consent Order is signed after the (d) The respondent may terminate an commencement of an enforcement ad- enforcement action if the reply agrees judication, the adjudication of the to comply with the proposed remedy issues subject to the Consent Order and waives any right to contest the Noshall be stayed until the completion of tice or the remedy. If a respondent the Secretarial Review Process. If the elects this option, the Preliminary NoConsent Order becomes a Final Order, tice of Violation shall be deemed a the adjudication shall be terminated or Final Order upon the filing of the modified as specified in the Order.
reply. (d) Secretarial review. A Consent Order shall become a Final Order 30 days
8820.25 Final notice of violation. after it is filed unless the Secretary (a) General rule. If, after reviewing files a rejection of the Consent Order or the reply submitted by the respondent, a Modified Consent Order. A Modified the Director determines that a person Consent Order shall become a Final violated or is continuing to violate a Order if the Director and the person provision of the Act or a DOE Nuclear who is its subject sign it within 15 days Safety Requirement, he may file a of its filing.
Final Notice of Violation. The Final
Notice shall concisely state the deter8820.24 Preliminary notice of viola mined violation, any designated pention.
alty, and further actions necessary by (a) If the Director has reason to be- or available to respondent. lieve a person has violated or is con (b) Effect of final notice. (1) If a Final tinuing to violate a provision of the Notice of Violation does not contain a Act or a DOE Nuclear Safety Require- civil penalty, it shall be deemed filed ment, he may file a Preliminary Notice as a Final Order 15 days after the Final of Violation. The Notice and any trans- Notice is filed unless the Secretary mittal documents shall contain suffi- files a Final Order which modifies the cient information to fairly apprise the Final Notice. respondent of the facts and cir- (2) If a Final Notice of Violation concumstances of the alleged violations tains a civil penalty, the respondent and the basis of any proposed remedy, must file within 30 days after the filing and to properly indicate what further of the Final Notice: