ML20148D968
| ML20148D968 | |
| Person / Time | |
|---|---|
| Issue date: | 03/17/1988 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-52FR36215, RULE-PR-2 NUDOCS 8803240401 | |
| Download: ML20148D968 (6) | |
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'88 MR 21 Pl2:06 10 CFR PART 2 QFitCE OF E L.y.;t.r..
00CKEllNG /, SEpylg' SR t.NCH RECONSIDERATION OF ENFORCEMENT POLICY PROVISION INVOLVING REOPENING AGENCY: Nuclear Regulatory Comission i
E s ACTION: Policy statement: Modification. ,o SUMF.ARY: The NRC is publishing a minor modification to its Enforcement Policy to clarify its policy on reopening closed enforcem nt actions. This policy is codified as Appendix C to 10 CFR Part 2.
DATES: Since this action concerns a general statement of policy, no prior notice is reouired and, hence, this modification to the Enforcement Policy is effective durch 23, 1988 . Coments may be submitted on or before hby 23, 1988, i
ADDRESSES: Send coments to: Secretary, U.S. Nuclear Regulatory Comission, Washington, D.C. 20555. ATTN: Docketing and Service Branch. Hand deliver ;
i coments to: Room 1121, 1717 H Street, NW., Washington, DC between 7:30 a.m.
to 4:15 p.m. I C'opies of coments may be examined at the NRC Public Document,1717 H Street, N.W., Washington, DC. e803240401 880317 PDR h52F 6215 FOR FURTHER INFORMATION CONTACT:
James Lieberman, Director, Office of Enforcement.
O U.S. Nuclear Regulatory Cocnission, Washington, DC 20555 (301-492-0741).
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r SUPPLE)iENTARY INFORMATION: l l
The Commission on September 23, 1987 issued a revised Enforcement Policy l (52 FR 36215, September 28, 1987) in which Section V.F. addressed reopening l closed enforcement actions. Section V.F. provided that if significant new information is received which indicates that a previous enforcement sanction was incorrectly applied, the action could be reopened. The policy also stated that (1) reopening should occur only if remedial action is necessary to abate a continued harm or if the new information shows that the violation was less serious than originally believed or that the violation did not occur, and (2) normally actions would not be reopened where the on'iy change to the prior action would be to increase the severity level of a violation or to impose or increase a civil penalty.
While comrents submitted in response to the September 28, 1987 Policy Statement were generally favorable to the wording of section V.F. the Comission has reconsidered this policy because it implies tFat an enforcement action would not normally be reopened to increase a sanction even if such action was warranted. For example, reopening may be warranted to increase a sanction such as a civil penalty on the basis of new information if the reason NRC did not have the information initially was because the licensee misled the NRC by j providing false information or withholding the information from the NRC. In such a case, any prejudice to the licensee is the result of its own action.
Reopening would be justified erder the terms of the current enforcement policy j
to impose the appropriate sanction. Not to do so would reward a licensee's failure to cooperate with the NRC, which of course cannot be tolerated.
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It should be noted that the issue here is reconsidering the existence of the original violation or the circumstances and severity of the original violation.
If the new information supports e different violation, then reopening is not the issue because a new and different enforcement action can be taken.
Whether or not to reopen a completed enforcement action requires the exercise of sound discretion and judgment. It is difficult in the absence of a specific case to establish what action if any should be taken as a result of new infcrmation. Considerations in making a determination to reopen a closed case might include: whether the licensee knew or should have known of the information at the time the original action was closed, whether the doctrine of res judicata applies, the opportunities available to learn of the information earlier and the reason for NRC not obtaining it earlier, the significance of the new inferration, the extent of the charge to the enforcement action warranted by the new information, the resources necessary to reopen the case, the seed for an increased sanction to provide additional deterence for the impacted licensee and other similar licensees, whether the licensee acquiesced to the original erforcement action, whether remedial action is needed to abate the effect of the original violation, whether the original violation in fact occurred, and whether the licensee would be severely or unjustly prejudiced by a reopening dccision (apart from receiving a more severe sanction).
Recognizing that this is an issue which arises infrecuently and that there are many considerations relevant to a reopening decision on the basis of new information, the Conmission has determined to modify Section V.F. of the Enforcement Policy to emphasize that the deciston to reopen a caso is to be made en a case-by-case basis.
M List of Subjects in 10 CFR Part 2 Administrative practice and procedure, Antitrust, Byproduct material Classified information Environmental protection, Nuclear materiels, Nuclear power plants and reactors, Penalty, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.
Fct the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as anended, and 5 U.S.C. 553, the NRC is adopting the following modification to its statement of Enforcement Policy in Appendix C to 10 CFR Part 2.
Part 2 - Rules of Practice for Domestic Licensing Proceedings 1 The authority citation for Part 2 continues to read as follows:
Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C. 2201, 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C.
2241); sec. 201, 88 Stat.1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871).
Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Section 2.105 also issued
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l under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also issued under secs. 186, 234, 68 Stat. 955, 83 Stat. 444, as amended (42 U.S.C. 2236, 2282); sec. 206, 88 Stat. 1246 (42 U.S.C. 5846).
Sections 2.600-2.606 also issued under sec. 102, Pub. L.91-190, 83 Stat.
853 as amended (42 U.S.C. 4332). Sections 2.700s, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770 also issued under 5 U.S.C. 557.
l Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also is:ued under 5 U.S.C. 553 and sec. 29, Pub. L.85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Subpart X also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L.97-425, 96 Stat. 2230 (42 U.S.C.10154). Appendix A also issued under sec. 6, Pub. L.91-580, 84 Stat. 1473 (42 U.S.C. 2135). Appendix B also issued under sec. 10, Pub. L.99-240, 99 Stat. 1842 (42 U.S.C. 2021b et seq.).
- 2.Section V.F. of Appendix C is revised to read as follows:
Appendix C - General Statement of Policy and Frocedure fer f:RC Enforcement Actions.
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I 6-1 Y. Enforcement Actions
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F. Reopening Closed Enforcement Actions If significant new information is received or obtained by NRC which indicates that an enforcement sanction was incorrectly applied, l consideration may be given, dependent on the circumstances, to re-opening a closed enforcement action to increase or decrease the severity of a sanction or to correct the record. Reopening decisions will be made on a case-by-case basis, are expected to occur rarely, and require the specific approval of the Deputy Executive Director for Regional Operations.
DatedatWashington,00,this{hdayof M&R 1988.
For the Nuclear Regulatory Comission i
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(~1h e\ :)N 3 B1tr-
'#SSecretary aniuel J. Ch of 'the Cormission.
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