ML20248E626

General Statement of Policy and Procedure for NRC Enforcement Actions.Enforcement Policy

ML20248E626
Person / Time
Issue date:	05/31/1998
From:	NRC OFFICE OF ENFORCEMENT (OE)
To:
References
FACA, NUREG-1600, NUREG-1600-R01, NUREG-1600-R1, NUDOCS 9806030386
Download: ML20248E626 (32)

Text

_ _ _ - - _ _ _ _ _ _ _ - _ - - - _ - - _ - _ - - - - - _ - _ - - - -

A -

NUREG-1600, Rev.1 General Statement of Policy and Procedures for I NRC Enforcement Actions Enforcement Policy U.S. Nuclear Regulatory Commission Office of Enforcement i

~

f ^L.4 lj 1-

.r"' %,,

. /

9eg6o g g 98o531 1600 R PDR

AVAILABILITY NOTICE Availability of Reference Materials Cited in NRC Publications Most documents cited in NRC publications will be available from one of the following sources:

1. The NRC Public Document Room, 2120 L Street, NW., Lower Level, Washington, DC 20555-0001

2. The Superintendent of Documents, U.S. Government Printing Office, P. O. Box 37082, Washington, DC 20402-9328

3. The National Technical Information Service, Springfield, VA 22161-0002 I

Although the listing that follows represents the majority of documents cited in NRC publica-tions, it is not intended to be exhaustive.

Referenced documents available for inspection and copying for a fee from the NRC Public Document Room include NRC correspondence and internal NRC memoranda; NRC bulletins, circulars, information notices, inspection and investigation notices; licensee event reports; vendor reports and correspondence: Commission papers; and applicant and I;censee docu-ments and correspondence.

The following documents in the NUREG series are available for purchase from the Government Printing Office: formal NRC staff and contractor reports, NRC-sponsored conference pro-ceedings, international agreement reports, grantee reports, and NRC booklets and bro-chures. Also available are regulatory guides, NRC regulations in the Code of Federal Regula-tions, and Nuclear Regulatory Commission Issuances.

Documents available from the National Technical Information Service include NUREG-series ]

rcports and technical reports prepared by other Federal agencies and reports prepared by the Atomic Energy Commission, forerunner agency to the Nuclear Regulatory Commission.

Documents available from public and special technical libraries include all open literature items, such as books, journal articles, and transactions. Federal Register notices, Federal and State legislation, and congressional reports can usually be obtained from these libraries.

Documents such as theses, dissertations, foreign reports and translations, and non-NRC con-forence proceedings are available for purchase from the organization sponsoring the publica-tion cited.

Single copies of NRC draft reports are available free, to the extent of supply, upon written request to the Office of Administration. Distribution and Mail Services Sectio'n , U.S. Nuclear Regulatory Commission, Washington DC 20555-0001. ]

l Copies of industry codes and standards used in a substantive manner in the NRC regulatory process are maintained at the NRC Library, Two White Flint North,11545 Rockville Pike, Rock-ville, MD 20852-2738, for use by the public. Codes and standards are usually copyrighted  ;

and may be purchased from the originating organization or, if they are American National l Standards, from the American National Standards Institute,1430 Broadway, New York, NY )

10018-3308.

i

p" pg t UNITED STATES g ,j

't

' NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20565-0001

/

IMPORTANT NOTICE: REVISED NRC ENFORCEMENT POLICY On May 13,1988, the Commission published a complete revision of the Enforcement Policy in the Federa/ Register (63 FR 26630) that became effective on that date. This Policy applies to all NRC '

licensees, vendors, contractors, and their employees involved in NRC licensed activities. The Enforcement Policy is being published as NUREG-1600, Rev.1, " General Statement of Policy and Procedure for NRC Enforcement Actions," to provide widespread dissemination.*

This revision of the Policy is based on a consolidation of changes to the Policy since June 30,1995, and a 2-year review of the Enforcement Policy that the NRC staff performed. The staff's report (NUREG-1622, "NRC Enforcement Policy Review: July 1995 - July 1997," November 1997) concluded that the changes made to the Enforcement Policy in 1995 (especially in the civil penalty assessment process) have helped to improve the predictability and consistency of enforcement actions, while maintaining the agency's desire to use enforcement sanctions for providing appropriate emphasis and deterrence in a way that helps to support the agency's overall safety mission. This conclusion is reflected in several aspects of the Enforcement Policy:

V The Enforcement Policy is a' appropriately geared toward creating deterrence (i.e., taking action in a manner that provides incentives to identify and correct violations that have occurred and discourage future violations) and is properly structured for nuclear regulation. I v The Enforcement Policy recognizes that violations have varying degrees of safety significance, and that in considering the significance of a violation, it is appropriate to consider the technical significance (i.e., actual and potential consequences) and the regulatory significance. In addition, risk is an appropriate consideration in evaluating the technical significance of a violation.

V The Enforcement Policy is appropriately structured to maintain a focus on safety.

V The civil penalty assessment process is appropriately structured to reflect issues the agency believes are appropriate to consider in assessing whether a civil penalty should be proposed, i.e., past performance, identification, corrective action, and those warranting discretion. I J

V The use of discretion and judgment throughout the deliberative process recognizes that enforcement of NRC requirements does not lend itself to mechanistic treatment.

Notwithstanding the general satisfaction with the Enforcement Policy, the review included a number of recommendations to the Commission for revisions to the Enforcement Policy and for development of additional enforcement guidance. The Commission is issuing this policy statement after considering those recommendations and the bases for them in NUREG-1622.

It should be noted that this is a policy statement and not a regulation. The Commission may deviate from this statement of policy and procedure as appropriate under the circumstances of a particular case, ames Lieberman, Director Office of Enforcement i

Enclosure:

NUREG-1600, Rev.1

• The NRC Enforcement Policy, and other enforcement-related information, is located on the NRC's Office of Enforcement's homepage on the intemet at www.nrc. gov /OE/.

i

% - _ _ _ J

NUREG-1600, Rev.1 General Statement of Policy and Procedures for NRC Enforcement Actions 1

Enforcement Policy Manuscript Completed: May 1998 Dite Published: May 1998 OfTice of Enforcement U.S. Nuclear Regulatory Commission Wcshington, DC 20555-0001 I

i f s,,

s.....

Abstract This document includes tne U.S. Nuclear Regulatory Commission's (NRC's or Commission's) revised General Statement of Policy and Procedure for Enforcement Actions (f.nforcement Policy) as it was published in the FederalRegister on May 13,1998 (63 FR 26630). The Enforcement Policy is a general statement of policy explaining the NRC's policies and procedures in initiating enforcement actions, and of the presiding officers and the Commission in reviewing these actions. This policy statement is applicable to enforcement matters involving the radiological health and safety of the public, including employees' health and safety, the common defense and security, and the environment. This statement of general policy and procedure is published as NUREG-1600, Rev.1 to provide widespread dissemination of the Commission's Enforcement Policy.

However, this is a policy statement and not a regulation. The Commission may deviate from this statement of policy and procedure as appropriate under the circumstances of a particular case.

Questions conceming the En.%rcement Policy should be directed to the NRC's Office of Enforcement at 301-415-2741. This document, as well as other enforcement-related information, is available on the NRC's Office of Enforcement's homepage on the Internet at www.nre. gov /OE/.

iii NUREG 1600, Rev. I

1

\

l 1

- Contents -

Abstract . . . ... ........ ... . ... . ........................................iii l

Statements of Consideration for Revised Enforcement Policy . . . . . . . . . . . . . . . . . . . . . ..... 1 Revised Enforcement Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ........... .... 3 Table of Contents . . . . . . ... ...... . ........ . .... . .. .. .... ... ....... 3 Preface . . . . . . . . . . . . . . . . . . . . . . . ........ ......... . ..... ......... . ...... 3

1. INTRODUCTION AND PURPOSE . . . . . . . . . . . . . . . . ........ ..... ..... .4 II. STATUTORY AUTHORITY AND PROCEDURAL FRAMEWORK . . . . . ... . . .4 A. Statutory Authority . . . ............ ....... ...... ... .. . ......... 4 B. Procedural Framework . . . . . . . . ....... .. .. . ..... .............. . 4 III. RESPONSIBILITIES . . . . . ... ... ................ .. .... .... ... ....... 5 IV. S EVERITY OF VIOLATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. Aggregation of Violations . . . . . . . .. . . .... .. ............. ... 6 B. Repetitive Violations ... ...... ... ... ... .............. ...... .6 C. Willful Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... ... 6 D. Violations of Reponing Requirements .................. ...... . ........ 6 V. PREDECISIONAL ENFORCEMENT CONFERENCES .. ...... ...... .......... 6 VI. ENFORCEMENT ACTIONS . . . . . ........... . ... .. .. . . ... ... 8 A. Notice of Violation . . . . . . . . . ..... ...... ... ...... . . ... . 8 B. Civil Penalty . . . . . . . . ... .. .. . ... .. .. .. ... .. ..... . 8

1. Base Civil Penalty .. .. . . ............ ...... .. . .. ..... 8

2. Civil Penalty Assessment ..... . .... ........ . ........... 8

a. Initial Escalated Action . . ..... . .. . ...... .. ......... 9

b. Credit for Actions Related to identification . . . . . . . .. . .... .9

c. Credit for Prompt and Comprehensive Corrective Action . . ...... I1

d. Exercise of Discretion . . . . . . . . . . .. . . ......... .. 11 C. Orders . . . ... .... .. ...... . ... .... .. .. .. ....... . 11 D. Related Administrative Actions . . . . . . . . . .. . .. ... .... .... . ... 12 VII. EXERCISE OF DISCRETION . . . . . . . . . ...... . .. .. . ... .......... . 12 A. Escalation of Enforcement Sanctions . . . .. .. ..... . . .. 12

1. Civil Penalties . . . . . . . . . . . . . ....... .. . ....... ..... . ..... 12

2. Orders . . . ... ... ... .... .. .... .. ..... ........ 13

3. Daily Civil Penalties . . . . ..... . ... . ...... . . ..... 13 B. Mitigation of Enforcement Sanctions . . . . . . . . . . .. .. .. . .... .. 13

1. Licensee-Identified Severity Level IV Violations . . .. .. . .. . 13

2. Violations Identified During Extended Shutdowns or Work Stoppages . . . . . 13

3. Violations Involving Old Design issues . . . .. .. ..... ...... . 14

4. Violations Identified Due to Previous Enforcement Action . . . . . . . . . . . 14

5. Violations involving Discrimination .... ........... . ... ...... 14

6. Violations involving Special Circumstances . . . . ......... .... . 14 C. Exercise of Discretion for an Operating Facility . . . . . ......... ....... 15 VIII. ENFORCEMENT ACTIONS INVOLVING INDIVIDUALS . . . .. ... ..... . 15 IX. INACCURATE AND INCOMPLETE INFORMATION . . . . . . . . . . . . . . . . . . 17 X. ENFORCEMENT ACTION AGAINST NON-LICENSEES ...... ... ......... .. 17 XI. REFERRALS TO THE DEPARTMENT OF JUSTICE . . . . ... . ........... I8 XII. PUBLIC DISCLOSURE OF ENFORCEMENT ACTIONS . ... . ..... . ..... 18 j XIII. REOPENINO CLOSED ENFORCEMENT ACTIONS . .. .. . .. ... ....... .. 18 APPENDIX A: SAFETY AND COMPLIANCE . . . . . . . . . . . .. ........ . ... . 18 APPENDIX B: SUPPLEMENTS - VIOLATION EXAMPLES . . . . . . . ....... ....... . 18 y NUREG-1600, Rev.1

I f

26630 Fed:rcl Regist:r/Vol. 63. No. 92/ Wednesday, May 13.1998 / Notices

(

NUREG-1525. " Assessment of the NRC Enforcement Program." and the Commission made revisions to the Enforcement Policy after considering NRC those recommendations.The revisions to the Enforcement Policy were intended to, among other things:

~

e

- (4 TMmeM e Emphasize the importance of identifying problems before events 4 occur, and of taking prompt.

,* h,yy comprehensive corrective action when problems are identified; l

' l e Direct agency attention at licensees with multiple enforcement actions in a relatively short period; and NUCLEAR REGULATORY i COMMISSION e Focus on current performance of licensees.

, [NUREG-1600, Rev.1] The revisions to the Enforcement S cy wem ab intenM to Mtedocm

> Revision of NRC Enforcement Policy the inspection and enforcement process l* AGENCY: Nuclear Regulatory on safety, provide greater incentives for Commission, strong self-monitoring and corrective ACTION: Policy statement. action programs in the civil penalty 4

• assessment process, provide more

SUMMARY

The Nuclear Regulatory predictability and consistency in the Commission (NRC) is publishing a civil penalty assessment process, and to g complete revision of the agency's better convey clear regulatory messages.

Enforcement Policy (NUREG-1600. When the Commission published the I " General Statement of Policy and revised Enforcement Policy in the

( Procedure for NRC Enforcement Federal Register on June 30.1995,it i Actions") based on (1) a 2-year review stated that it would provide the public

! of the revised Enforcement Policy, that an opportunity to comment on the I was effectiveJune 30,1995, and (2) a revised Enforcement Policy after it had consolidation of changes to the

{ been in effect for about 18 months. On Enforcement Policy since June 30.1995. February 5.1997 (62 FR 5495).the

[ DATES:This action is effective May 13- Commission published an opportunity

1998, while comments are being for the public to comment on the i received. Submit comments on or before revised Enforcement Policy.

June 29.1998.

The NRC has reviewed approximately J}s ADDRESSES: Submit written comments to: David L. Meyer. Chief. Rules and 2 years of experience under the revised Enforcement Policy and considered i Directives Branch. Division of public comments. The NRC staff f Administrative Services. Office o'f prepared a report (NUREG-1622.8 "NRC j Administration. Mail Stop: T6D59. U.S. Enforcement Policy Review: July 1995-3 Nuclear Regulatory Commission. July 1997." November 1997) that

Washington. DC 20555. Hand deliver concluded that the changes made to the g comments to

11555 Rockville Pike- Enforcement Policy in 1995 (especially Rockville. Maryland, between 7:30 am in the civil penalty assessment process)

I and 4:15 pm. Federal workdays. Copies have helped to improve the f; of comments received may be examined predictability and consistency of at the NRC Public Document Room, enforcement actions, while maintaining l 2120 L Street. NW. (Lower Level)- the agency's desire to use enforcement

! Washington. DC. sanctions for providing appropriate t

FOR FURTHER INFORMATION CONTACT : emphasis and deterrence in a way that James Lieberman. Director, Office of helps to support the agency's overall

! Enforcement. U.S. Nuclear Regulatory safety mission. This conclusion is

? Commission. Washington, DC 20555.

(301) 415-2741. ' Copies of NUREG-1622 may be purchased from

( SUPPLEMENTARY INFORMATION : On June the superintendent of Documents. U.S Government 30.1995, the Commission published a Printing Office. Mail Stop SSOP, Washington. DC 20402-9328 Copies are also available from the complete revision of the NRC,s National Techrucal information Service 5285 Port

Enforcement Policy (60 FR 34381). The Royal Road. Springfield. Var 8tnia 22161 A copy is l

• changes to the Enforcement Policy also available for inspecuon and copying for a fee resulted from the efforts of a review in the NRC Public Document Room. 2120 L Street.

I NW. (Lower Level). Washington. DC 2055s-0001.

team established in 1994 to assess the The report is also included on the NRC's Office of e NRC's enforcement program. The review Enforcemenrs homepage on the Iniernet at

team published itr recommendations in www nrc gov /OE/.

i 1 NUREG 1600, Rev.1

Fedtral R:gister/Vol. 63. No. 92/ Wednesday, May 13.1998 / Notices 26631 reflected in several aspects of the Office of the Chief Financial Officer provide a written response.) It is the Enforcement Policy: (OCFO) was created as part of the NRC's NRC's intent that this approach will e The cunent Enforcement Policy is January 5.1997, reorganization. The normally be taken in the event a civil appropriately geared toward creating Office of the Controller has now been penalty is under consideration. This deterrence (i.e . taking action in a incorporated into the OCFO and the section has also been modified to manner that provides incentives to position of the Director, Office of the include an additional option when a identify and correct violations that have Controller (previously identified in the conference is not held, such that the occurred and discourage future policy as having the issuing authority), NRC may proceed to issue an violations) and is properly structured has been subsumed by the CFO. enforcement action without first for nuclear regulation. This section has also been modified to obtaining the licensee's response to the ,

e The Enforcement Policy recognizes emphasize that the technical and inspection report, if the NRC has i that violations have varying degrees of regulatory significance of violations are sufficient information to conclude that a safety significance. and that in considered in conjunction with the civil penalty is not warranted. This considering the significance of a principles of the policy statement and approach would still: (1) Provide violation, it is appropriate to consider the surrounding circumstances when licensees an opportunity to request a the technical significance (i.e.. actual the agency determines the appropriate conference to dispute the action. (2) and potential consequences) and the enforcement strategy. provide licensees an opportunity to regulatory significance. In addition. risk This section has also been revised to dispute the action in writing through is an appropriate consideration in indicate that the Commission is to be the provisions of 10 CFR 2.201 (as with I evaluating the technical significance of provided notification (where any Notice of Violation). (3) allow the I a violation. appropriate, based on the uniqueness or NRC to conduct a conference where e The Enforcement Policy is significance of the issue) for a plant matters are disputed or where the appropriately stnactured to maintain a meeting the criteria of Section VII.B.6 licensee's documented corrective i focus on safety. (mitigation for violations involving actions are not sufficiently prompt and  !

e The current civil penalty special circumstances). This is comprehensive. and (4) provide for assessment process is appropriately consistent with the policy revision to modification or recision of the NOV, if l structured to reflect issues the agency Section VII issued on December 26 appropriate.

believes are appropriate to consider in 1996 (61 FR 68070). It should be noted that these m deifications are not meant to be assessing whether a civil penalty should IV. Severity of Violations be proposed, i.e., past performance. construed as exclusive enforcement identi:ication, co Tective action, and This section has been modified such options. In other words, it does not those warranting discretion.

that minor violations will no longer be change the existing practice whereby e The use of discretion andjudgment noted as Non-Cited Violations (NCVs) the NRC may choose to issue an throughout the deliberative process when they are documented in enforcement action (including civil recognizes that enforcement of NRC inspection reports. Instead,if a minor penalties and orders) without requirements does not lend itself to violation warrants documentation. it conducting a conference. These changes mechanistic treatment. will be noted as a violation of minor are being made in an effort to make the Notwithstanding the general significance that is not subject to formal enforcement process more efficient (by satisfaction with the Enforcement enforcement action. The definition of an reducing the number of conferences and Policy, the review included a nuraber of NCV included in footnote 6 has also reducing the workload of both the NRC recommendations to the Commission for been deleted. The purpose of these and licensees and improving the revisions to the Enforcement Policy and changes is to avoid confusion between timeliness of enforcement actions).

for development of additional minor violations dispositioned as NCVs VI. Enforcement Actions enforcement guidance.The Commission in accordance with Section IV and is issuing this policy statement after Severity LevelIV violations This general discussion of the NRC's considering those recommendations and dispositioned as NCVs in accordance philosophy and approach to taking the bases for them in NUREG-1622. with Section VII.B.I. " Licensee- enforcement has been modified by The more significant changes to the identified Severity Level IV Violations." including the recognition that Enforcement Policy (in the order that Use of the term "NCV" will now be circumstances regarding a violation may they appear in the Policy) are described reserved for those Severity LevelIV warrant discretion such that the NRC b; low: violations that meet the criteria for may refrain from issuing a Notice of discretion in Section VII.B.I. Violation or other enforcement action.

1. Introduction and Purpose This discussion was previously V. Predecisional Enforcement included in Section VI.A. " Notice of This section has been modified t Conferences include a brief discussion on the y 3 .. and has been more meaning of " safety" and " compliance" This section has been modified to appropriately relocated to this section.

as they are used in the context of this indicate that a predecisional enforcement conference is not required A. Notice of Violation policy statement. This section also references a new appendix (Appendix if the NRC has sufficient information to The NRC has had a long-standing A) that describes the nexus between make an informed enforcement policy that licensees are not ordinarily safety and compliance. decision. If a conference is not held, the cited for violations resulting from hcensee may be requested to provide a matters not within their control, such as Ill. Responsibilities written response to an inspection report equipment failures that are not This section has been modified to as to the licensee's views on the avoidable by reasonable licensee quality reflect that the Chief Financial Officer apparent violations and their root assurance measures or management (CFO) is delegated the authority to issue causes and a description of planned or controls. This discussion has been orders where licensees violate implemented corrective actions. (The deleted from this section and more Commission regulations by nonpayment previous discussion indicated that the appropriately included in the of license and inspection fees. The licensee will normally be requested to discussion on mitigation of sanctions in NUREG-1600, Rev. I 2

26632 Federal Register /Vol. 63. No. 92/ Wednesday. May 13.1998 / Notices Section Vll.B.6. " Violations involving regulatory requirement that was violated determined that this action is not a Special Circumstances.' was clear, or given the NRC's current major rule and has verified this B. Civil fenalty information, appropriate. As previously determination with the Office of addressed, this section also includes Information and Regulatory Affairs of

1. Base Civil Penalty that the NRC may refrain from issuing OMB.

Table I A has been revised to correct enforcement action for violations Accordingly, the NRC Enforcement the inadvertent omission of a footnote resulting from matters beyond a Policy is revised to read as follows:

that indicates that large firms engaged in licensee's control. However, licensees manufacturing or distribution of GENERALSTATEMENTOF POLICY AND are generally responsible for the actions PROCEr)URE FOR NRC ENFORCEMENT byproduct, source, or special nuclear of its employees. The revised text. ACTIONS material be considered as industrial consistent with long-standing NRC processors. Table 1 A had included this interpretation, makes it clear that Table of contents footnote prior to the 1995 policy licensees are also responsible for the Pre / ace revision and this footnote was included actions of their contractors. L Introduction and Purpose in the table in the draft Federal Register Appendix A: Safety and Compilance ^

h",*tuto y Au ity for ubi c tion an e ab e in This appendix has been added to BI Procedural Framework Section Il D1c of NUREG-1525. Table address the NRC's philosophy on the s

{I bjlties I A has also been revised to include nexus between safety and compliance.

additional guidance in determinin8 A. Aggregation of Violations Appendix B: Supplemtats-Violation B. Repetitive Violations which category material users should be Examples C. Willful Violations considered under by including "other D. Violations of Reporting Requirements large material users" in category "c" This appendix was administratively V. Predecisiona1 Enforcement Conferences and "other small materials users" in created as a result of the addition of VI. Enforcement Actions category ..d. Appendix A and includes the previous A. Notice of Violation guidance included in the Supplements B. Civil Penalty VIL Exercise of Discretion section of the policy. 1. Base Civil Penalty B. Mitigation of Enforcement Sanctions Supplement VII-Miscellaneous 2. Civil Penalty Assessment

a. Initial Escalated Action Section Vll.B.I. " Licensee Identified Matters b. Credit for Actions Related to Severity Level IV Violations." is bein8 Examples B.4 and C.4 have been Id "

modified to address licensee identified revised to reflect NRC practice in c Credft forrompt and Comprehensive violations that are identified as a result Corrective Action applying Severity Level 11 and 111 of an event. On December 10.1996 (61 d. Exercise of Discretion FR 65088), the Commission issued a categorization for violations involving C. Orders discrimination. In particular. Severity D. Related Administrative Actions revision to the Enforcement Policy that Level 11 categorization is appropriate for VII. Exercise of Discretion included a modification to the criterion discriminatory acts by middle to upper A. Escalation of Enforcement Sanctions in Section Vll.B.I.a. Specifically, the management, not simply any level 1. Civil Penalties phrase " including identification '"

through an event was deleted from the above first line supervision. Severity [ Niy Civil Penalties Level Ill categorization is appropriate BI Mitigation of Enforcement Sanctions criterion. The modification was for low level supervision and intended to make it clear that use of 1. Licensee-Identified Severity Level fV management, even if they are above a Violations discretion is not automatic if the first line supervisor.

violation is identified through an event. 2. Violations identified During Extended A footnote is being included to the Paperwork Reduction Acf Shutdowns or Work Stoppages

3. Violations involving Old Design Issues criterion to address how the NRC will This policy statement does not 4. Violations identified Due to Previous normally consider violations that are Enforcement Action contain a new or amended information identified as a result of an event. collection requirement subject to the 5. Violations involving Discrimination The Commission recognizes that there Paperwork Reduction Act of 1995 (44 " '"" n8 Pecial mav 1,e particular circumstances in a U.S.C. 3501 et seq.). Existin3 fr u s ances ca e where discretion is warranted and C. Exercise of Discretion for an Operating requirements were approved by the Facility the NRC should refrain from issuing Office of Management and Budget.

enforcement action. Sections VILB.3 VIII. Enforcement Actions Involving approval numoer 3150-0136. The Individuals Vll.B.4. and Vll B.6 of the Enforcement approved information collection IX. Inaccurate and Incomplete Information Policy provide that discretion may be requirements contained in this policy X. Enforcement Action A,ainst Non-warranted for certain Severity Level 11 statement appear in Section WI C. LIC'"5'*5 and III violations. If the circumstances XL Referrals to the Department of Justice of a particular case may warrant Public Protection Notification XII Public Disclosure of Enforcement discretion at Severity Level 11 or 111. then The NRC may not conduct or sponsor.

discretion may also be appropriate at XIII. R ning Closed Enforcement Actions and a person is not required to respond Appendix A: Safety and Compliance Severity Level IV. Therefore, changes to, a collectica of information unless it have been made to the examples to Appendix B: Supplements-Violation displays a currently valid OMB control Examples reflect that the NRC may choose to number.

refrain from issuing a Notice of Preface Violation for a Severity LevelIV Small Business Regulatory Enforcement Faimss Ad The following statement of general violation. policy and procedure explains the Section VILB.6 was also modified to In accordance with the Small enforcement policy and procedures of include additional factors for Business Regulatory Enforcement the U.S. Nuclear Regulatory consideration, including whether the Fairness Act of 1996, the NRC has Commission (NRC or Commission) and 3 NUREG-1600, Rev.1

Federal R: gist:r/Vol. 63 No. 92/ Wednesday. May 13.1998 / Notices 26633 the NRC staff (staff) in initiating providing reasonable assurance of peralties (i.e., monetary fines and enforcement actions and of the adequate protection for the public in imprisonment) for willful violations of presiding officers and the Commission connection with the use of source. the Act and regulations or orders issued byproduct and special nuclear under sections 65,161(b) 161(i), or in reviewing these actions. This stttement is applicable to enforcement materials. Compliance means meeting 161(o) of the Act. Section 2?3 provides in matters involving the radiological regulatory requirements. Appendix A to that criminal penalties may be imposed health and safety of the public, this policy statement describes the on certain individuals employed by including employees' health and safety. nexus between safety and compliance. firms constructing or supplying basic the common defense and security, and .

components of any utilization facility if II. Statut ry Authority and Procedural the individual knowingly and willfully the environment.1 This statement of Ramew rk violates NRC requirements such that a g:neral policy and procedure will be A. Statutory Authority basic component could be significantly published as NUREG-1600 to provide widzspread dissemination of the impaired. Section 235 provides that Commission s Enforcement Policy, The NRC's enforcementjurisdiction is criminal penalties may be imposed on drawn from the Atomic Energy Act of Persons who interfere with inspector-However, this is a policy statement and 1954, as amended, and the Energy Secti n 236 provides that criminal not a regulation. The Commission may Reorganization Act (ERA) of 1974. as deviate from this statement of policy penalties may be imposed on persons amended. who attempt to or cause sabotage at a and procedure as appropriate under the Section 161 of the Atomic Energy Act nuclear fachy or to nuclear fd circumstances of a particular case. authorizes the NRC to conduct Alleged or suspected criminal violations

1. Introduction and Pu se inspections and investigations and to f the Atomic Energy Act are referred to issue orders as may be necessary or the Department of justice for The purpose of the NRC enforcement desirable to promote the common program is to support the NRC s overall appropriate action.

defense and security or to protect health safzty mission in protecting the public or to minimize danger to life or B. Procedura1 Framework and the environment. Consistent with Property,3ection 186 authorizes the Subpart B of 10 CFR Part 2 of NRC's that purpose, enforcement action should NRC to revoke licenses under certain regulations sets fonh the procedures the be used circumstances (e g, for material false NRC uses in exercising its enforcement e As a deterrent to emphasize the statements, in response to conditions authority.10 CFR 2.201 sets forth the

. Importance of compliance with that would haw warramed afusal of a procedures for issuing notices of requirements, and llCense n 83 riginal APPlication, for a violation.

e To encourage prompt identification licensee s failure t build or operate a The procedure to be used in assessing and prompt. comprehensive correction facility in accordance with the terms of civil penalties is set forth in 10 CFR of violations' the permit or license, and for violation 2.205. This regulation provides that the Consistent with the purpose of this of an NRC regulation). Section 234 civil penalty process is initiated by P g am P n tands authorizes the NRC to impose civil issuing a Notice of Violation and

,}g c me 9, .i! be aken when Proposed imposition of a Civil Penalty.

dealing with licensees, contractors.2 and- vi latiPenalties n per day not to exceed for the siolation$100.000 of The perlicensee or other person is provided their employees. who do not achieve the Certain SPecified licensing provisions of an opportunity to contest in writing the necessary meticulous attention to detail the Act rules, orders, and license terms proposed imposition of a civil penalty.

and the high standard of compliance implementing these provisions, and for After evaluation of the response, the which the NRC expects.3 Each vi lati ns f r which licenses can be civil penalty may be mitigated, remitted.

enforcement action is dependent on the rev ked in addition to the enumerated or imposed. An opportunity is provided I

circumstances of the case and requires pr visi ns in secti n 234. sections 84 for a hearing if a civil penalty is the exercise of discretion after and 147 authorize the imposition of imposed. If a civil penalty is not paid consideration of this enforcement civil penalties for violations of following a hearing or if a hearing is not policy. In no case, however, will regulations implementing those requested. the matter may be referred to licensees who cannot achieve and provisions. Section 232 authorizes the the U.S. Department of Justic? to maintain adequate levels of safety be NRC to seek injunctive or other institute a civil action in District Court.

permitted to conduct licensed activities. equitable relief for violation of The procedure for issuing an order to h, r purposes of this policy statement, regulatory requirements. institute a proceeding to modify.

I sa ety means avoiding undue rish, i.e.. Section 206 of the Energy suspend. or revoke a license or to take b

8 Antitrust enforcement matters will be dealt with to impose civil penalties for knowing person subject to theju.risdiction of the on a case-by<ase basis.

and conscious failures to provide Commission is set forth in 10 CFR 2The term " contractor" as used in this policy inicudes vendors who supply products or seruces Certain safety information to the NRC. 2.202. The licensee or any other person to be used m an NRC hcensed facthey or activity Notwithstanding the $100.000 limit adversely affected by the order may 8This policy primarily addresses the activiacs of stated in the Atomic Energy Act, the request a hearing.The NRC is Cammission may impose higher civil authorized to make orders irr. mediately re eSt. AgSou  ;

cIr effective if required to protect the public the pohey. However, in those cases where the NDc Penalties as provided by the Debt  !

determines that it 6s appropriate to take Collection improvement Act of 1996. health. safety, or interest, or if the ]

enforcement action against a non-heensee or Under the Act, the Commission is violation is willful. Section 2.204 sets IaNcIblIT5"eNn!"cen7eN' luY be used required to modify civil monetary out the procedures for issuing a Demand f l

contractors and subcontractors. holders of. or penalties to renect innation. The for Inft>rmation (Demand) to a licensee  ;

rppheants for. NRC approvals. e g. certificates of adjusted maximum civil penalty amount or other person subject to the comphance. early site permits, or standard design is renected in 10 CFR 2.205 and this Commission's jurisdiction for the certictates and the employees of these non- purpose of determining whether an timees. specific guidance regarding enforcemen, Policy Statement.

acuan against individuals and non hcensees is Chapter 18 of the Atomic Energy Act order or other enforcement action sddressed in Sections Vill and E respectively provides for varying levels of criminal should be issued. The Demand does not NUREG-1600, Rev.1 4 j

26634 Federal Register /Vol. 63. No. 92/ Wednesday May 1 98 / Notices provide hearing rights. as only penalty, after considering the general significance,is evaluated as the first information is being sought. A licenset principles of this statement of policy step in the enforcement process. In must answer a Demand An unlicensed and the technical and regulatory considering the significance of a person may answer a Demand by either significance of the violations and the violation, the staff considers the providing the requested information or surrounding circumstances.

explaining why the Demand should nos technical significance, i e. actual and Unless Commission consultation or potential consequences. and the have been issued. notification is required by this policy, regulatory significance. In evaluating III. Responsibilities the NRC staff may depart, where the technical significance, risk is an The Executive Director for Operations warranted in the public s interest, from appropriate consideration.

this policy as provided in Section Vll, Consequently, for purposes of formal (EDO) and the principal enforcement officer of the NRC. the Deputy Executive " Exercise of Enforcement Discretion / enforcement action. violations are Director for Regulatory Effectiveness- The Commission will be provided normally categorized in terms of four hereafter referred to as the Deputy written notification of all enforcement levels of severity to show their relative Executive Director has been delegated actions involving civil penalties or importance within each of the following the authority to approve or issue all orders. The Commission will also be eight activity areas:

provided rotice the first time that I. Reactor Operations:

escalated enforcement actions.* The Deputy Executive Director is discretion is exercised for a plant IL Facility Construction:

responsible to the EDO for the NRC meeting the criteria of Section VII.B.2. III. Safeguards; The Commission is also to be provided W Health Physics:

enforcement program. The Office of V. Transponation:

Enforcement (OE) exercises oversight of notification (where appropriate. based VI. Fuel Cycle and Materials operations; and implements the NRC enforcement on the uniqueness or significance of the issue) for a plant meeting the criteria of VII. Miscellaneous Matters. and program. The Director. OE. acts for the VIII. Emergency Preparedness.

Deputy Executive Director in Section VII.B.6. In addition. the enforcement matters in his absence or as Commission will be consulted prior to Licensed activities will be placed in delegated. taking action in the following situations the activity area most suitable in light of Subject to the oversight and direction (unless the urgency of the situation the particular violation involved of OE. and with the approvalof the dictates immediate action): including activities not directly covered Deputy Executive Director, where (1) An action affecting a licensee's by one or the above listed areas e g..

export license activities. Within each necessary, the regional offices normal!y operation that requires balancing the issue Notices of Violation and proposed public health and safety or common 2ctivity area. Seventy Level I has been civil penalties. However, subject to the defense and security implications of not aSslaned to violations that are the most same oversight as the regional offices, operating with the potential radiological significant and Severity LevelIV the Office of Nuclear Reactor Regulation or other hazards associated with vi lations are the least significant.

continued operation: Seventy Level I and 11 violations are of (NRR) and the Office of Nuclear Material Safety and Safeguards (NMSS) (2) Proposals to impose a civil penalty very significant regulatory concern. In may also issue Notices of Violation and f r a single violation or problem that is general, violations that are included in proposed civil penalties for certain greater than 3 times the Seventy Level these severity categories involve actual activities. Enforcement orders are I value shown in Table 1 A for that class or high potential impact on the public.

flicensee; Severity Level 111 violations are cause normally issued by the Deputy (3) Any proposed enforcement action for significant regulatory concem Executive Director or the Director. OE. Severity Level IV violations are less However, orders may also be issued by that involves a Severity LevelI the EDO. especially those involving the vi lation: serious but are of more than minor more significant matters. The Directors (4) Any action the EDO believes .

concern; i.e.. if left uncorrected. they of NRR and NMSS have also been warrant Commission involvement; could lead to a more serious concern.

delegated authority to issue orders, but (5) Any proposed enforcement case The Commission recognizes that there it is expected that normal use of this involving an Office ofInvestigations are other violations of minor safety or authority by NRR and NMSS will be (OI) report where the NRC staff (other environmental concern which are below confined to actions not associated with than the 01 staff) does not arrive at the the level of significance of Severity compliance issues. The Chief Financial same conclusions as those in the O! LevelIV v olations. These minor Offder has been delegated the authority report concerning issues ofintent if the violations are not the subject of formal to ssue orders where licensees violate Director of 01 concludes that enforcement action and are not usually Commission regulations by nonpayment Commission consultation is warranted; described in inspection reports. To the of license and inspection fees. and extent such violations are described.

in recognition that the regulation of (6) Any proposed enforcement action they will be noted as violations of minor nuclear activities in many cases does on which the Commission asks to be significance that are not subject to not lend itself to a mechanistic consulted. formal enforcement action.

treatment, judgment and discretion Comparisons of significance between must be exercised in determining the IV. Severity of Violations activity areas are inappropriate. For severity levels of the violations and the Regulatory requirements 5 have example, the immediacy of any hazard appropriate enforcement sanctions, varying degrees of safety, safeguards or to the public associated with Severity including the decision to issue a Notice environmental significance. Therefore, Level I violations in Reactor Operations of Violation, or to propose or impose a the relative importance of each is not directly comparable to that civil penalty and the amount of this violation including both the technical associated with Severity LevelI significance and the regulatory v olations in Facility Construction.

• The term ~ escalated enforcement scuan" as Supplements I through Vill provide used m this pohey means a Notice of Violation or s The term " requirement" as used in this policy examples and serve as guidance in cN1 penalty for any Severity Level 1. II. or 111 means a legally bmdang requirement such as a determining the aEErOEriate severit7 violanon (o'r problem) or any order based upon a statute. regulauon. license condauon. technical violauon level for violations in each of the eight specincauon. or order.

activity areas. However, the examples 5 NUREG-1600, Rev.1

Federal R: gist:r/Vol. 63. No. 92/ Wednesday. May 13. I998/ Notices 26635 previous corrective actions the period time such that it willfully continues, the are neither exhaustive nor controlling, violation should be categorized at least in addition, these examples do not of time between the violations, and the significance of the violations. at a Severity LevelIV.

create new requirements. Each is C Mul MolaHons & Molanons of Reporting Requirements that e NRC aces o a rtic la pe Willful violations are by definition of The NRC expects licensees to provide of violation of NRC requirements. Each complete, accurate. and timely of the examples in the supplements is Particular concern to the Commission information ard reports. Accordingly, because its regulatory program is based predicated on a violation of a regulatory on licensees and their contractors, unless otherwise categorized in the requirement. employees, and agents acting with Supplements. the severity level of a The NRC reviews each case being violation involving the failure to make considered for enforcement action on its integrity and communicating with a required report to the NRC will be own merits to ensure that the severity of candor. Willful violations cannot be tolerated by either the Commission or a based upon the significance of and the a violation is characterized at the level licensee. Licensees are expected to take circumstances surrounding the matter best suited to the significance of the that should have been reported.

particular violation. In some cases, significant remedial action in responding to willful violations However, the severity level of an special circumstances may warrant an untimely report. In contrast to no report, adjustment to the severity level commensurate with the circumstances such that it demonstrates the may be reduced depending on the categorizatlc n. seriousness of the violation thereby circumstances surrounding the matter.

A. Aggregation of Violation) creating a deterrent effect within the A licensee will not normally be cited for licensee's organization. Although a failure to report a condition or event A group of Severity LevelIV violations may be evaluated in the removal of tne person is not necessarily unless the licensee was actually aware required, substantial disciplinary action of the condition or event that it failed aggregate and assigned a single. to report. A licensee will. on the other increased severity level, thereby is expected.

Therefore, the severity level of a hand, normally be cited for a failure to resulting in a Severity Level 111 problem. report a condition or event if the v+olation raay be increased if the if the violations have the same licensee knew of the information to be circumstances surrounding the matter underlying cause or programmatic reported, but did not recognize that it deficiencies, or the violations involve careless disregard of requirements, deception, or other was required to make a report.

contributed to or were unavoidable consequencesof the underlying indications of willfulness. The term V. Predecisional Enforcement problem. Normally. Severity Level 11

, willfulness as used in this policy Conferences and Ill violations are not aggregated into embraces a spectrum of violations Wher ever the NRC has learned of the a higher severity level. ranging from deliberate intent to violate existence of a potentialviolation for The purpose of aggregating violations or falsify to and including careless which escalated enforcement action is to focus the licensee's attention on the disregard for requirements Willfumess appears to be warranted, or recurring fundamental underlying causes for does not include acts which do not rise nonconformance on the part of a which enforcement action appears to the level of careless disregard, e.g.. contractor, the NRC may provide an warranted and to reflect the fact that inadvertent clerical errors in a opp rtunity for a predecisional several violations with a common cause document submitted to the NRC. In enforcement conference with the may be more significant collectively determining the specific severity level licensee, contractor, or other person than individually and may, therefore, of a violation involving willfulness, before taking enforcement action. The warrant a more substantial enforcement consideration will be given to such Purpose of the conference is to obtain action. factors as the position and information that will assist the NRC in responsibilities of the person involved determining the appropriate B. Repetiure Violarians in the violation (e.g.. licensee official, enforcement action, such as: (1) A The severity level of a Severity Level or non-supervisory employee), the c mmon understanding of facts, root IV violation may be increased to significance of any underlying violation, causes and missed opportunities Seventy Level 111 if the violation can be the intent of the violator (i.e.. careless associated with the apparent violations, considered a repetitive violation > The disregard or deliberateness). and the (2) a common understanding of purNse of escalathg the severity level economic or other advantage. if any. c trective actions taken or planned, and of repetitive violation is to gained as a result of the violation. The (3) a common understanding of the annowledge the added significance of relative weight given to each of these significance of issues and the need for the situation based on the licensee's factors in arriving at the appropriate lasting comprehensive corrective action.

failure to implement effective corrective severity level will be dependent on the If the NRC concludes that it has action for the previous violation. The circumstances of the violation. sufficient information to make an decision to escalate the severity level of However, if a licensee refuses to correct inf rmed enforcement decision, a a repetitive violation will depend on the a minor violation within a reasonable conference will not normally be held.

circumstances. such as, but not limited However, an opportunity for a to. the number of times the violation has T The term " licensee official" as used m this conference will normally be provided occurred. the similary of the violations Pohcy statement rneans

"*

• licensed indivadual. first-line supervisor a radiation safetyor before issuing an order based on a and their root causes. the adequacy of officer. or an authorized user of licensed matenal violation of the rule on Deliberate whether or not lasted on a license. Notwtutstanding Misconduct or a civil penalty to an

• The term

• repenuve violation" or "similar an mdwidual s job title, seventy leve:

violation" as used in this policy statement means categonzauon for wil!ful acts involvmg mdividuals unlicensed person. If a conference is not

• * ' l 2 a 'h*' 85onably could have been who can be considered beensee ofhQls will held, the licensee may be requested to prevented by a licensee s correctwe action for a consider several factors. including the posioon of brovide a Written TesEonse to an previous violauon nor nally occurnng (1) withm the individual relatrve to the hcensee s inspection report if issued, as to the the past 2 years of the inspection at assue. or (2) th organizational structure and the individual's responsibdtues relative to the oversight of licensed licensee's views on the apparent penod withm the last two inspections. whichever n 1 nem actwines and to the use of bcensed snatenal. violations and their root causes and a NUREG-1600, Rev.1 6

26636 Federal Register /Vol. 63. No. 92 / Wednesday, !viay 13.1998 / Notices description of planned or implemented conferences with the approval of the case the associated predecisional corrective actions. However. If the NRC Executive Director for Operamons. enf orcement conference will normally has sufficient information to conclude conferences may either be open or be open to public observation In a that a civil penalty is not warranted h closed to the public after balancing the conference where a particular may proceed to issue an enforcement benefit of the public's observation individuals being considered action without first obtaining the agaiu .he potential impact on the potentially responsible for the licensee's response to the inspection agency's decision making process in a discrimination, the conference will report. panicular case. remain closed. In either case (i e.,

l During the predecisional enforcement The NRC will notify the licensee that wtmther the conference is open or

conference, the licensee, contractor, or the conference will be open to public closed), the employee or former other persons will be given an observation. Consistent with the employee who was the subject of the opportunity to provide information agency's policy on open meetings. " Staff alleged discrimination (hereafter consistent with the purpose of the Meetings Open to Public." published referred to as " complainant") will conference. including an explanation to September 20.1994 (59 FR 48340), the normally be provided an opportunity to the NRC of the immediate corrective NRC intends to announce open participate in the predecisional actions (if any) that were taken conferences normally at least 10 enforcement conference with the following identification of the potential working days in advance of cor&rences licensee / employer. This participation violation or nonconformance and the through (1) notices posted in the Public will normally be in the form of a long-term comprehensive actions that Document Room. (2) a toll free complainant statement and comment on were taken or will be taken to prevent telephone recording at 800-952-9674, the licensee's presentation. followed in recurrence. Licensees. contractors or (3) a toll free electronic bulletin board at turn by an opportunity for the licensee other persons will be told when a 800-952-9676. and on the World Wide to respond to the complainant's meeting is a predecisional enforcement Web at the NRC Office of Enforcement presentation. In cascs where the conference. homepage (www nrc gov /OE). In complainant is unable to attend in A predecisional enforcemerit addition the NRC will also issue a press person, arrangements will be made for ,

conference is a meeting between the release and notify appropriate State the complainant's participation by NRC and the licensee. Conferences are liaison officers that a predecisional telephone or an opportunity given for normally held in the regional offices enforcement conference has been the complainant to submit a written and are normally open to public scheduled and that it is open to public response to the licensee's presentation.

observation. Conferences will not observation.

If the licensee chooses to forego an normally be open to the public if the The public attending open enforcement conference and. instead.

enforcement action being contemplated: conferences may observe but may not (1) Would be taken against an Participate in the conference. It is noted responds to the NRC's findings in writing, the complainant will be individual, or if the action. though not that the purpose of conducting open. provided the opportunity to submit taken against an individual, turns on conferences is not to maximize public attendance, but rather to provide the written comments on the licensee's whether an individual has committed response. For cases involving potential wrongdoing. Public with opportunities to be informed of NRC activities consistent discrimination by a contractor, any (2) Involves significant personnel ~

associated predecisional enforcement failures where the NRC has requested with the NRC s ability to exercise its regulatory and safety responsibilities. conference with the contractor would t>e -

that the individual (s) involved be present at the conference; Therefore. members of the public will handled similarly. These arrangements (3) Is based on the findings of an NRC be allowed access to the NRC regional for complainant participation in the '

offices to attend open enforcement predecisional enforcement conference Office on Investigations report that has not been publicly disclosed or conferences in accordance with the are not to be conducted or viewed in (4) Involves safeguards information, " Standard Operating Procedures For any respect as an adjudicatory hearing.

Privacy Act information, or information Providing Security Support For NRC The purpose of the complainant's which could be considered proprietary: Hearings and Meetings." published Participation is to provide mformation In addition, conferences will not November 1.1991 (56 FR 56251). These t the NRC to assist it in its enforcement procedures provide that visitors may be deliberations.

normally be open to the public if:

(5) The conference involves medical subject to personnel screening. that A predecisional enforcement mi< administrations or overexposure signs, banners. posters, etc., not larger conference may not need to be held in at the conference cannot be conducted than 18" be permitted and that cases where there is a full adjudicatory without disclosing the exposed disruptive persons may be removed. record before the Department of Labor.

individual's name: or The open conference will be terminated if a conference is held in such cases (6) The conference will be conducted if disruption interferes with a successful generally the conference will focus on by telephone or the conference will be conference. NRC's Predecisional the licensee's corrective action As with conducted at a relatively small Enforcement Conferences (whether open discrimination cases based on 01 licensee's facility. or closed) normally will be held at the investigations, the complainant may be Notwithstanding meeting any of these NRC's regional offices or in NRC allowed to participate.

criteria. a conference may still be open Headquarters Offices and not in the Members of the public attending open if the conference involves issues related vicinity of the licensee's facilitv. conferences will be reminded that (1) to an ongoing adjudicatory proceeding For a case in which an NRC Office of the apparent violations discussed at with one or more interveners or w here Investigations (01) report finds that predecisional enforcement conferences the evidentiary basis for the conference discrimination as defined under 10 CFR are subject to further review and may be is a matter of public record, such as an 50.7 (or similar provisions in Parts 30. subject to change prior to any resulting adjudicatory decision by the 40. 60. 70. or 72) has occurred. the 01 enforcement action and (2) the Department of Labor. In addition. report may be made public, subject to statements of views or expressions of notwithstanding the above normal withholding certain information (i e.. opinion made by NRC employees at criteria for opening or closing after appropriate redaction), in which predecisional enforcement conferences.

7 NUREG-1600, Rev. I j

Federd R: gist:r/Vol. 63. No. 92/ Wednesday May 13.1998 / Notices 26637 or the itck thereof, are not intended to require responses to Notices of Violation into account the gravity of the violation represent final determinations or beliefs. to be under oath. Normally. responses as a primary consideration and the When naeded to protect the public under oath will be required only in ability to pay as a secondary health and safety or common defense connection with Severity Level I. II. or consideration. Generally, operations and security, escalated enforcement 111 violations or orders. involving greater nuclear material action. such as the issuance of an The NRC uses the Notice of Violation inventories and greater potential l

immediately effective order will be a.s the usual method for formalizing the consequences to the public and licensee l

taken before the conference. In these existence of a violation. Issuance of a employees receive higher civil cases, a conference may be held after the Notice of Violation is normally the only penalties. Regarding the secondary escalater' enforcement action is taken. enforcement action taken, except in factor of ability of various classes of cases where the criteria for issuance of licensees to pay the civil penalties, it is i VI. Enforcement Actions civil penalties and orders, as set forth in not the NRC's intention that the {

This section describes the Sections VI.B and VI.C. respectively. are economic impact of a civil penalty be so I enforcement sanctic.ss available to the met. severe that it puts a licensee out of  ;

NRC and specifies the conditions under business (orders, rather than civil I which each may be used. The basic B. Civ11 Penahy penalties, are used when the intent is to l enforcement sanctions are Notices of A civil penalty is a monetary penalty suspend or terminate licensed activities) '

Violation, civG penalties, and orders of that may be imposed for violation of (1) or adversely affects a licensee's ability various types. As discussed further in certain specified licensing provisfor.s of to safely conduct licensed activities.

Section VI.D. reisted administrative the Atomic Energy Act or The deterrent effect of civil penalties is actions such as Notices of supplementary NRC rules or orders: (2) best served when the amounts of the Nonconformance. Notices of Deviation, any requirement for which a license penalties take into account a licensee's ,

Confirmatory Action Letters. Letters of may be revoked; or (3) reporting ability to pay. In determining the i Reprimand, and D?mands for requirements under section 206 of the amount of civil penalties for licensees Information are used to supplement the Energy Reorganization Act. Civil for whom the tables do not reflect the enforcement program. In selecting the penalties are designed to deter future ability to pay or the gravity of the enforcement sanctions or administrative violations both by the involved licensee violation. the NRC will consider as tctions, the NRC will consider as well as by other licensees conducting necessary an screase or decrease on a enforcement actions taken by other similar activities and to emphasize the case-by-case basis. Normally, if a Federal or State regulatory bodies need for licensees to identify violations licensee can demonstrate financial having concurrentjurisdiction such as and take prompt comprehensive hardship, the NRC will consider in transportation matters. corrective action. payments over time, including interest. -

Usually, whenever a violation of NRC Civil penalties are considered for rather than reducing the amount of the  !

requirements of more than a minor Severity Level III violations. In addition. civil penalty. However, where a licensee concern is identified, enforcement civil penalties will normally be assessed claims financial hardship, the licensee action is taken. The nature and extent of for Severity Level I and II violations and will normally be required to address the enforcement action is intended to knowing and conscious violations of the why it has sufficient resources to safely reflect the seriousness of the violation reporting requirements of section 206 of conduct licensed activities and pay involved. For the vast majority of the Energy Reorganization Act. license and inspection fees.

violations, a Notice of Violation or a Civil penalties are used to encourage

2. Civil Penalty Assessment Notice of Nonconformance is the normal prompt identification and prompt and action. comprehensive correction of violations, in an effort to (1) emphasize the l However, circumstances regarding the to emphasize compliance in a manner importanceof adherenceto violation findings may warrant that deters future violations, and to requirements and (2) reinforce prompt discretion being exercised such that the serve to focus licensees' attention on self identification of problems and root NRC refrains from issuing a Notice of violations of significant regulatory causes and prompt and comprehensive Violation or other enforcement action. concern. correction of violations, the NRC (See Section VII.B. " Mitigation of Although management involvement, reviews each proposed civil penalty on Enforcement Sanctions ") direct or indirect, in a violation may its own merits and after considering all A. A,oticeof Molation lead to an increase in the civil penalty, relevant circumstances. may edjust the the lack of management involvement base civil penalties shown in Table 1 A s Notice of Violation is a written may not be used to mitigate a civil and 1B for Severity LevelI II. and III notice setting forth one or more penalty. Allowing mitigation in the violations as described below.

violations of a legally binding latter case could encourage the lack of The civil penalty assessment process

! requirement. The Notice of Violation management involvement in licensed considers four decisional points: (a) normally requires the recipient to activities and a decrease in protection of Whether the licensee has had any provide a written statement describing the public health and safety. Previous escalated enforcement action (1) the reasons for the violation or, if (regardless of the activity area) during contested. the basis for disputing the 1. Base Civil Penalty the past 2 years or past 2 inspections.

violation: (2) corrective steps that have The NRC imposes different levels of whichever is longer; (b) whether the been taken and the results achieved; (3) penalties for different severity level licensee should be given credit for corrective steps that will be taken to violations and different classes of actions related to identification: (c) prevent recurrence; and (4) the date licensees, contractors, and other whether the licensee's corrective actions when full compliance will be achieved. persons Tables I A and IB show the are prompt and comprehensive. and (d)

The NRC may waive all or portions of base civil penalties for various reactor, whether, in view of all the a written response to the extent relevant fuel cycle, and materials programs. circumstances, the matter in question information has already been provided (Civil penalties issued to individuals are requires the exercise of discretion.

to the NRC in writing or documented in determined on a case-by case basis ) The Although each of these decisional an NRC inspection report. The NRC may structure of these tables generally takes points may have several associated i

NUREG-1600, Rev.1 8

~

26638 Federal Register /Vol. 63. No. 92/ Wednesday, May 13,1998 / Notices considerations for any given case, the of the following three resuits: no civil representation of the civil penalty outcome of the assessment process for penalty, a base civil penalty, or a base assessment process.

each violation or problem. absent the civil penalty escalated by 100%. The , , , ,

exercise of discretion, is limited to one flow chart presented below is a graphic l

l YES I O

CP YES CA CREDIT

?

Ist NON-WILLFUL SL lli NO IN YES 2Yl2f BASE ID Cf' CREDIT

• NO  ?

YES NO CA CREDIT

?

BAS.E NO CP

+100%

• Should the IIconsee tse given credit for oc6ons related to identifloodon?

OD Disor=#on. eg., sL I and at violomons should nonneer roeult in a cMI pensity regensees of ID and CA.

sec, cm 7sec "

violation, the starting point would be licensee should be given credit for

a. InitialEscalated Action. When the w hen the NRC puts the licensee on actions related to identification.

NRC determines that a non-willful notice, which could be during the In each case. the decision should be Severity Level Ill violation or problem inspection, at the inspection exit focused on identification of the problem has occurred, and the licensee has not meeting, or as part of post inspection requiring corrective action. In other had any previous escalated actions communication. words. although giving credit for (regardless of the activity area) during the past 2 years or 2 inspections. If the corrective action isjudged to be Identification and Corrective Action whichever is longer, the NRC will prompt and comprehensive, a Notice of should be separate decisions, the Violation normally should be issued concept ofIdentification presumes that conuder whether the licensee's the identifier recognizes the existence of co' rective action for the present with no associated civil penalty. lf the a problem. and understands that violation or problem is reasonably corrective action isjudged to be less corrective action is needed.The prompt and comprehensive (see the than prompt and comprehensive, the decision on Identification requires discussion under Section VI.B.2.c, Notice of Violation normally should be considering all the circumstances of below). Using 2 years as the basis for issued with a base civil penalty. identification including:

assessment is expected to cover most b. Credit for Actions Related to (i) Whether the problem requiring situations. but considering a slightly Idenufication. (1) If a Severity Levell or corrective action was NRC-identified, longer or shorter period might be 11 violation or a willful Severity Level III licensee identified, or tevealed through warranted based on the circumstances violation has occurred-or if. during the an event *:

of a particular case. The starting point past 2 years or 2 inspections, whichever of this period should be considered the is longer, the licenste has been issued

• An " event." as used here. means (1) an event date when the licensee was put on at least one other escalated action-the characte ed an acHve a se mpact q p, , 9, ] , o by human notice of the need to take corrective civil penalty assessment should observauon or instrumentauon. cr (2) a radiological action. For a licensee-identified normally consider the factor of impact on personnel or the environment in excess violation or an event, this would be identification in addition to corrective of regulatory hmits. such as an overexposure, a when the licensee is aware that a action (see the discussion under Section wiease t radi acm matenal above'" m nrna or problem or violation exists requiring VI.B.2.c, below). As to identification.

corrective action. For an NRC identified the NRC should consider whether tN

• )ne' q n fa a co eSe tl rou h a p'll of hquid. a loud noise. the failure to have a system 9 NUREG-1600, Rev. I

_ _ . . 1

Federal Register /Vol. 63. No. 92 / Wednesday May 13.1998 / Notices 26639 (ii) Whether prior opportunities Any of these considerations may be available to the licensee that caused the existed to identify the problem requiring overriding if particularly noteworthy or NRC concern, the specificity of the corrective action, and if 50. the age and particularly egregious. For example, if NRC's concern, the scope of the number of those opportunities; the event occurred as t he result of licensee's efforts, the level of licensee (iii) Whether the problem was conducting a surveillance or similar resources given to the investigation. and revealed as the result of a licensee self. self monitoring effort (i.e.. the licensee whether the NRC's path of analysis had monitoring effort, such as conducting an was looking for the problem), the been dismissed or was being pursued in audit, a test, a surveillance, a design licensee should normally be given tredit parallel by the lice 1see.

review, or troubleshooting; for identification. As a second instance. In some cases the licensee may have (iv) For a problem revealed through even if the problem was easily addressed the isolated symptoms of i an event. the ease of discovery, and the discovered (e g., revealed by a large spill each violation (and may have identified degree of licensee initiative in of liquid) the NRC may choose to give the violations). but failed to recognize identifying the root cause of the credit because noteworthy licensee the common root cause and taken the problem and any associated violations; effort was exerted in ferreting out the necessary comprehensive action. Where (v) For NRC-identified issues, whether root cause and associated violations, or this is true, the decision on whether to the licensee would likely have simply because no prior opportunities give licensee credi: for actions related to identified the issue in the same time- (e g.. procedural cautions, post

• Identification should focus on period if the NRC had not been maintenance testing, quality control identification of the problem requiring involved; failures. readily observable parameter corrective action (e g. the programmatic (vi) For NRC identified issues, trends, or repeated or locked in breakdown). As such dependingon the whether the licensee should have annunciator warnings) existed to chronology of the various violations. the identified the issue (and taken action) identify the problem- earliest of the individual violations earlier; and (iii) NRC-ldentified. W, hen a problem might be ccnsidered missed (vii) For cases in which the NRC requiring corrective action is NRC- opportunities for the licensee to have identified, the decision on whether t identifies the overall problem requiring identified the larger problem.

corrective action (e g.. a programmatic give the licensee credit for actions (v) Missed Opportunities to ldentify.

issue) the degree of licensee initiative related to Identification should Missed opportunities include prior or lack of initiative in identifying the normally be based on an additional notifications or missed opportunities to problem or problems requiring question: should the licensee have identify or prevent violations such as (1)

orrective action. reasonably identified the problem (and through normal surveillance, audits. or (2) Although some cases may consider ta r aedon) earli r. quality assurance (QA) activities; (2) reasoning may be ell of the above factors. the importance through prior notice, i e., specific NRC based simply on the ease of the NRC c! each factor will vary based on the r industry notification; or (3) through

.sdiscovery (e g., conducting a tyg of case as discussed in the walkdown, observing in the control other reasonable indication of a following general guidance: room, performing a confirmatory NRC Potential problem or violation. such as (i) Licensee-Identified. When a radiation survey, hearing a cavitating observations of employees and problem requiring corrective action is contractors, and failure to take effective hcensee-identified (i e., identified pump. or finding a valve obviously out of position). In some cases, the corrective steps. It may it.clude findings before the problem has resulted in an licensee's missed opportunities to of the NRC. the licensee, or industry event). the NRC should normally give identify the problem might include a made at other facilities operated by the the licensee credit for actions related t similar previous violation. NRC or licensee where it is reasonable to expect identification, regardless of whether industry notices, internal audits. or the licensee to take action to identify or prior opportunities existed to identify readily observable trends. Prevent similar problems at the facility the problem. If the NRC identifies the violation but subject to the enforcement action at (ii) Identified Through an Event. concludes that, under the issue. In assessing this factor.

When a problem requiring cor ective circumstances, the licensee's actions consideration will be given to, among action is identified through an event, related to Identification were not other things, the opportunities available the decision on whether to give the unreasonable. the matter would be to discover the violation. the ease of licensee credit for actions related to treated as liceruee-identified for discovery. the similarity betwecn the iderufication wrmalN should consider purposes of assessing the civil penalty. violation and the notification, the the ease of discovery, wt.tther the event in such cases, the question of period of time between when the o(curred as the result of a licensee self- Identification credit shifts to whether violation occurred and when the monitoring effort (i e.. whether the the licensee should be penalized for notification was issued. the action taken licensee was "looking for the prcblem"). NRC's identification of the preblem. (or planned) by the licensee in response the degree of licensee initiative in (iv) Mixed Identification. For " mixed" to the notification, and the level of identifying the problem or problems identification situations (i.e., where management review that the notification requiring corrective action, and whether multiple violations exist. some NRC- received (or should have received).

prior opportuni-tes existed to identify dentified some licensee-identified.or The evaluation of missed the problem. w here the NRC prompted the licensee to opportunities should normally depend take action that resulted in the on whether the information available to respond properly. or an annunciator alarm would identification of the violation), the the licensee should reasonably have tyro'u"gh a$ u'nIn7reNewTou1Ir$ NRC s evaluation should normally caused action that would hase Uo((a determine whether the licensee could prevented the violation Missed similark af a hcenwe dncovered through quanerik dosimetry eadmgs. that employees had reasonably have been expected to opportunities is normally not applied twen inadequately moratored for radianon. the identify the s iolation in the NRC's where the licensee appropriately IcNedh e er fh d r r dings absence. This determination should reviewed the opportunity for dnclosed an overe posure the mue would tw consider among other things the timmg application to its activities and considered an event of the NRC's discovery. the information reasonaole action was either taken or NUREG-1600, Rev.1 10

26640 Federal Register /Vol. 63. No. 92/ Wednesday. May 13,1998 / Notices planned to be taken within a reasonable In assessing this factor, consideration (ii) Makes a prompt evaluation under time. will be given to the timeliness oi the 10 CFR 50.59 if the licensee intends to in some situations the missed corrective action (including the maintain the facility or procedure in the or >ortunity is a violation in itself. In promptness in developing the schedule as found condition; or these cases, unless the missed for long term corrective action), the opportunity is a Severity Level 111 adequacy of the bcensee's root cause (1 i) Promptly initiates corrective violation in itself, the missed action consistent with Criterion XVI of analysis for the violation, and. given the 10 CFR 50, Appendix B. if it intends to opportunity violation may be grouped significance and complexity of the with the other violations into a single issue, the comprehensiveness of the restore the facility or procedure to the Severity Level Ill " problem." However, corrective action (i e., whether the FSAR description.

if the missed opportunity is the only action is focused narrowly to the . d. Exercise ofDiscretion. As Provided violation. then it should not normally be specific violation or broaE!!y to the in Section Vll ,,E.xercise of Discretion.,

counted twice (i e., both as the violation general area of concern). Even in cases discietion may be exercised by either and as a missed opportunity " double when the NRC, at the tirne of the escalating or mitigating the amount of counting") unless the number of enforcement conference, identifies the civil penalty determined after opportunities missed was particularly additional peripheral or minor applying the civil penalty adjustment significant. corrective action still to be taken. tlm factors to ensure that the proposed civil The thning of the missed opportunity licensee may be given credit in thh area. Penalty reflects the NRC,s concern should also be considered. While a rigid as long as the licensee's actions regarding the violation at issue and that time-frame is unnecessary, a 2-year addressed the underlying root cause and it conveys the appropriate message to period should generally be considered are considered sufficient to prevent the licensee. However, in no instance for consistency in implementation, as recurrence of the violation and similar will a civil penalty for any one violation the period reflecting relatively current violations. exceed $110.000 per day.

f Normally, thejudgment of the (3 hen e NRC determines that the adequacy of corrective actions will TABLE 1 A-BASE civil PENALTIES licensee should receive credit for hinge on whether the NRC had to take actions related to Identification the civil action to focus the licensee's evaluative a. Power reactors and gaseous and corrective process in order to obtain usion p a 110,0 @

penalty assessment should normally ,

result in either no civil penalty or a base c mprehensive corrective action. This e ' and independent spent civil penalty, based on whether will n rmally bejudged at the time of the predecistonalenforcement fuel and monitored retnevable Corrective Acrion isjudged to be storage instana-reasonably prompt and comprehensive. c nference (e g., by outlining tions.. 27,500 When the licensee is not given credit for substantive additional areas where c. Test reactors, mills and ura-actions related to Identification the civil g rrective action is needed). Earlier nium conversion facihties, con-penalty assessment should nor.nally inf rmal discussions between the tractors, waste disposal heens-result in a Notice of Violation with licensee and NRC inspectors or ees, industnal radiographer, either a base civil penalty or a base civil management may result in improved and other large matenal corrective action, but should not users.. 11,000 penalty escalated by 100%, depending d. Research reactors, academic, on the quality of Corrective Action. normally be a basis to deny credit for because the licensee s performance is Corrective Action For cases in which '"*d'$al, r ther sman matenal "5"' 5.5@

clearly not acceptable. the licensee does not get credit for "

c. Credit for Prompt and actions related to Identification because 'Large firms engaged in trainufactunng or Comprehensive Corrective Action. The the NRC identified the problem, the d'stnbution of byproduct, source, or special assessment of the licensee's corrective lear matenat purpose of the Corrective Actionfactor . nupThis apphes to nonprofit institutions not is to encourage licensees to (1) take the action should begin from the time when otherwise categonzed in this table, mobile nu-the NRC put the licensee on notice of clear services, nuclear pharmacies, and physi-immediate actions necessary upon C'an offices.

discovery of a violation that will restore the problem. Notwithstanding eventual good comprehensive corrective action. If safety and compliance with the license, regulation (s), or other requirement (s); immediate corrective action was not TABLE 1B--BASE civil PENALTIES anr' W) develop and implement (in a taken to restore safety and compliance On percent]

once the violation was identified, tittely manner) the lasting actions that w.il not only prevent recurrence of the corrective action would not be Base civil considered prompt and comprehensive. Seventy level panalty violation at issue, but will be amounD Conective action for violations appropriately comprehensive, given the involving discrimination should significance and complexity of the normally only be considered i'

100' violation. to prevent occurrence of si . go comprehensive if the licensee takes m, violations with similar root causes. 50 prompt, comprehensive corrective Regardless of other circumstances ' Percent of amount hsted in Table 1 A.

action that (1) addresses the broader (e g., past enforcement history, environment for raising safety concerns C. Orders identification, the licensee's corrective in the workplace. and (2) provides a actions should always be evaluated as remedy foi the particular discrimination An order is a written NRC directive to pan of the civil penalty assessment at issue. modify, suspend, or revoke a heense; to process. As a reflection of the in response to violations of 10 CFR cease and desist from a given practice or impo..ance given to this factor, an NRC 50 59 corrective action should normally activity; or to take such other action as judgment that the licensee's corrective be considered prompt and may be proper (see 10 CFR 2.202).

action has not been prompt and comprehensive only if the licensee Orders may also be issued in lieu of, or cornprehensive wi'l alw ays result in (i) Makes a prompt decision on in addition to, civil penalties. as issuing at least a base civil penalty. operability; and either appropriate for Severity Level I,11. or 111 11 NUREG-1600, Rev. I

Federal Register /Vol. 63. No. 92/ Wednesday, May 13.1998 / Notices 26641 violations. Orders may be issued as NRC loses its reasonable assurance that 3. Confirmatory Action Letters are follows: the licensee will meet NRC letters confirming a licensee's or

1. License Modification orders are requirements with that person involved contractor's agreement to take certain issued when some change in licensee in licensed activities. actions to remove significant concerns equipment. procedures, personnel, or Unless .a separate response is about health and safety, safeguards, or management controls is necessary. warranted pursuant to 10 CFR 2.201, a the environment.

2. Suspension Orders may be used: Notice of Violation need not be issued 4. Letters of Reprimand are letters (a) To remove a threat to the public where an order is based on violations addressed to individuals subject to health and safety, common defense and described its the order. The violations Commission jurisdiction identifying a security, or the environment; described in an order need not be significant deficiency in their (b) To stop facility construction when. categorized by severity level. performance of licensed activities.

(i) Further work could preclude or Orders are made effective 5. Demands for information are significantly ninder the identification or immediately, without prior opportunity demands for information from licensees correction of an improperly constructed for hearing, whenever it is determined or other persons for the purpose of safety-related system or component; or that the public health, interest. or safety enabling the NRC to determine whether (ii) The licensee's quality assurance so requires. or w ben the order is an order or other enforcement action program implementation is not adequate responding to a violation involving should be issued.

to provide confidence that construction willfulness. Otherwise, a prior VII. Exercise of Discretion activities are being properly carried out; opportunity for a hearing on the order is afforded. For cas es in which the NRC Notwithstanding the normal guidance (c) When the licensee has not contained in this policy, as provided in responded adequately to other believes a basis cotild reasonably exist for not taking the action as proposed. Section 111. " Responsibilities." the NRC enforcement action:

the licensee will orcinarily be afforded may choose to exercise discretion and (d) When the licensee interferes with either escalate or mitigate enforcement the conduct of an inspection or an opportunity to show why the order investigation; or should not be issued in the proposed sanctions within the Commission's (e) For any reason not mentioned manner by way of a Demand for statutory authority to ensure that the Information. (See 10 CFR 2.204) resulting enforcement actir n above for which license revocation is legally authorized. D. Related Administrative Actions. In appropriately reflects the level of NRC Suspensions may apply to all or part addition to the formal enforcement concern regarding the s iolation at issue of the licensed activity. Ordinarily, a actions. Notices of Violttion, civil and conveys the appropriate message to licensed activity is not suspended (nor penalties. and orders, the NRC also uses the licensee.

is a suspension prolonged) for failure to administrative actions, such as Notices A. Escalation of Enforcement Sanctions comply with requirements where such of Deviation. Notices of Nonconformance. Confirmatory Action The NRC considers violations failure is not willful and adequate categorized at Severity Level 1.11. or III corrective action has been taken. Letters. Letters of Reprimand, and

3. Revocation Orders may be used: Demands for Information to supplement to be of significant regulatory concern.

its enforcement program. T he NRC If the application of the normal (a) When a licensee is unable or guidance in this policy does not result unwilling c comply with NRC expects licensees and contractors to adhere to any obligations and in an appropriate sanction, with the requirerten.ts; approval of the Deputy Executive (b) When a licensee refuses to correct commitments resulting from these a violation; actions and will not hesitate to issun Director and consultation with the EDO and Commission, as warranted. the NRC

(:) When licensee does not respond to appropriate orders to ensure that these a Notice of Violation where a response obligations and commitments are met. may apply its full enforcement authority was required: 1. Notices of Deviation are written where the action is warranted. NRC (d) When a licensee refuses to pay an notices describing a licensee's failure to action may include (1) escalating civil applicable fee under the Commission's satisfy a commitment where the penalties. (2) issuing appropriate orders, commitment involved has not been and (3) assessing civil penalties for regulations; or (e) For any other reason for which made a legally binding requirenant. A continuing violations on a per day basis.

revocation is authorized under section Notice of Deviation requests a licensee up to the statutory limit of $ 110.000 per 186 of the Atomic Energy Act (e g., any to provide a written explanation or violation, per day.

statement describing corrective steps 1. Civil penalties. Notwithstanding co dition which would warrant refusal of d license on an original application). taken (or planned) the results achieved. the outcome of the normal civil penalty ,

4. Cease and Desist Orders may be and the date when corrective action will assessment process addressed in Section used to stop an unauthorized activity be completed. VI B. the NRC may exercise discretion that has continued after notification by 2. Notices of Nonconformance are by either proposing a civil penalty the NRC that the activity is written notices describing contractors' where application of the factors would failures to meet commitments which otherwise resu!t in zero penalty or by unauthorized.

5. Orders to non-licensees. inclurfing have not been made legally bindmg escalating the amount of the resulting contractors and subcontractors, holders requirements by NRC. An example is a civil penaltv (i.e., base or twice the base of NRC approvals, e g. certificates of commitment made in a procurement civil penalty) to ensure that the compliance, early site permits. standard contract with a licensee as required by proposed civil penalty reflects the design certificates. or applicants for any 10 CFR Part 50. Appendix B. Notices of significance of the circumstances and of them, and to employees of any of the Nonconformances request non licensees conveys the appropriate regulatory foregoing, are used when the NRC has to provide written explanations or message to the licensee. The identified deliberate misconduct that statements describing corrective steps Commission will be notified if the may cause a licensee to be in violation (taken or planned) the results achieved, deviation in the amount of the civil of an NRC requirement or where the dates when corrective actic as will penalty proposed under this discretion incomplete or inaccurate information is be completed and measures o ter to from the amount of the civil penalty deliberately submitted or where the preclude recurrence. assessed under the normal process is NUREG-1600, Rev.1 12

26642 Federal Register /Vol. 63. No. 92/ Wednesday May 13.1998 / Notices more than two times the base civil and correct the violation but failed to do action committed to by the licensee by penalty shown in Tables I A and IB. so.

Examples when this discretion should the end of the inspection including be considered include, but are not B. Mitigation of Enforcement Sanctions I"**dl*** C CII"' 'CII " ""d comprehensive corrective action to limited to the following: The NRC may exercise discretion and prevent recurrence; (a) Problems categorized at Severity refrain from issuing a civil penalty and/

LevelI or II; or a Notice of Violation,if the outcome (d) It was not a willful violation or if (b) Overexposure. or releases of it was a willful violation; of the normal process described in radiological material in excess of NRC (i) The information concerning the Sections VI.A and VI B does not result violation, if not required to be reported, requirements; in a sanction consistent with an (c) Situatioro involving particularly was promptly provided to appropriate appropriate regulatory message. In NRC personnel, such as a resident poor licensee performance, or involving addition. even if the NRC exercises this willfulness; inspector or regional section or branch discretion. when the licensee failed to chief; (d) Situations w hen the licensee s make a required report to the NRC. a previous enforcement history has been separate enforcement action will (11) The violation involved the acts of particularly poor, or when the current normally be issued for the licensee's a low levelindividual (and not a violation is directly repetitive of an licensee official as Gefined in Section earlier violation; failure to make a required report. The IV.C).

approval of the Director. Office of (e) Situations when the violation Enforcement, with consultation with the (1 i) The violation appears to be the results in a substantial increase in risk. Deputy Executive Director as warranted, isolated action of the employee without including cases in which the duration of management involvement and the is required for exercising discretion of the violation has contributed to the the type described in Section Vll.B.I.b violation was not caused by lack of substantial increase; management oversight as evidenced by where a willful violation is involved, (f) Situations when the licensee made and of the types described in Sections either a history of isolated willful a conscious decision to be in violations or a lack of adequate audits noncompliance in order to obtain an Vll.B.2 through Vll.B 6. Comm'ssion or supervision of employees: and economic benefit; notification is required for exercising (iv) Significant remedial action (g) Cases involving the loss of a discretion of the type described in: (1) commensurate with the circumstances source. In addition. unless the licensee Section Vll.B.2 the first time discretion was taken by the licensee such that it self. identifies and reports the loss to the is exercised during that plant shutdown. demonstrated the seriousness of the NRC these cases should normally result and (2) Section Vll.B.6 where violation to other employees and in a civil penalty in an amount at least appropriate based on the uniqueness or contractors, therebv creating a deterrent in the order of the cost of an authorized significance of the issue. Examples effect within the licensee's organization.

disposal of the material or of the transfer when discretion should be considered Although removal of the employee from of the material to an authorized for departing from the normal approach licensed activities is not necessarily in Sections VI.A and VI B include, but required. substantial disciplinary action e ty Level 11 or Ill violations are n t limited to the fo!!owing: is expected.

associated with departures from the 1. Licensee.ldentified Severity Level ati ns he NRC. with the 2. ViolationsidentifiedDuring Final Safety Analysis Report identified ExtendedShutdowns or Work after two years from October 18,1996. 8PProvalof the Regional Administrator r his or her designee, may refrain from Stoppages.The NRC may refrain from Such a violation or problem would issuing a Notice of Violation or a consider the number and nature of the ISS "E

• C' "U #*

Proposed civil penalty for a violation violations, the severity of the violations. Severity Level V vi lati n that is that is identified after (i) the NRC has whether the violations were continuing. d cumented in an inspection report (or taken significant enforcement action and who identified the violations (and fficial field notes for some material an based upon a major safety event if the licensee identified the violation. $, ylo a i n ( CV Pro ded th the ' " 8 ** #

whether exercise of Section VII.B.3 of an operating reactor or a material inspec n rep n includes a brief enforcement discretion is warranted). demption of the corrective action and licensee (or a work stoppage at a

2. Orders. The NRC may, where construction site), or (ii) the licensee necessary or desirable. issues orders in that the violation meets all of the f 11 wing criteria: enters an extended shutdown or work coryunction with or in lieu of civil It de y , stoppage related to generally poor penalties to achieve or formalize perf nnance ver a 1 ng peri d of time, conrective actions and to deter further

t as n9 o that co reasonably be e> pected to have been pr vided that the violation is recurrence of serious violations. documented in an inspection repcet (or

3. Daily civilpenalties. In order to Prevented by the licensee's corrective acuon for a previous violation or a official field notes for some material recognize the added technical safety cases) and that it meets all of the significance or regulatory significance Previous licensee finding that occurred for those cases where a very strong within the past 2 years of the inspection following criteria:

at issue, or the penod within the last W h was either licensee-identified as message is warranted for a significant a result of a comprehensive program for violation that continues for more than two inspections, whichever is longer; (c) It was r will L e c rrected within problem identification and correction one day, the NRC may exercise that was developed in response to the discretion and assess a separate *'*** "* U*** E # C "*

• shutdown or identified as a result of an violation and attendaat civil penalty up employee allegaHon to the licensee; (If to the statutory limit of $110.000 for *Dascretion is not warran ed when a heensee

,dentities a violation as a retuit or an event where the NRC identifies the violation and all each day the violation continues. The the root cause of the event is obvmus or the hcensee of the other criteria are met, the NRC NRC may exercise this discretion if a had prior opportunity to idenitty the problem but should determine whether enforcement licensee was aware or clearly should have been aware of a violation, or if the f*fj ' k',*",",'y[,"r

, , , y nUd trNce isIe* action is necessary to achieve remedial dernonstrated inniative in odertifying th, action, or if discretion may still be licensee had an opportunity to identify notaton's root cause. appropriate.)

13 NUREG 1600, Rev.1

Federal Register /Vol. 63, No. 92/ Wednesday. May 13.1998 / Notices 26643 (b) It is based upon activities of the where required corrective action evidentiary hearing begins. In such licensee prior to the events leading to identifies the FSAR issue; cases, the NRC may exercise its the shutdown: (c) The licensee identifies the discretion not to take enforcement (c) It would not be categorized at violation but had prior opportunities to action when the licensee has addressed do so (was aware of the departure from the overall work environment for raising Severity Level 1; (d) It was not willful; and the FSAR) and failed to correct it earlier; safety concerns and has publicized that (d) There is wf!! fulness associated a complaint of discrimination for (e) The licensee's decision to restart with the violation; the plant requires NRC concurrence. engaging in protected activity was made (e) The licensee fails to make a report to the DOL. that the matter was settled

3. Violations involving Old Design required by the identification of the to the satisfaction of the employee (the Issues. The NRC may refrain from de rture from the FSAR; or terms of the specific settlement proposing a civil penalty for a Severity Level 11 or 111 violation involving a past f) The licensee either fails to take agreement need not be posted), and that, comprehensive corrective action or fails if the DOL Area Office found problem, such as in engineering. design, to appropriately expand the corrective discrimination, the licensee has taken or installation. provided that the action program. The corrective action action to positively reemphasize that violation is documented in an should be broad with a defined scope inspection report (or official field notes discrimination will not be tolerated.

and schedule. 5 milarly, the NRC may refrain from for some material cases) that includes a description of the corrective action and , , ,

I#

"5 f ff that it meets all of the following criteria: may refrain from issuing a Notice of U'{ taking enforcement action if a licensee settles a matter promptly after a person comes to the NRC without going to the (a) It was a licensee identified as a Vi lation or a proposed civil penalty for DOL Such discretion would normally result ofits voluntary initiative; a violation that is identified after the (b) It was or will be corrected, not be exercised in cases in which the NRC has taken enforcement action. licensee does not appropriately address including immediate corrective action provided that the violation is the overall work environment (e.g.. by and long term comprehensive conective documented in an inspection report (or using training postings. revised policies action tr> prevent recurrence, within a fficial field notes for some matenal or procedures, any necessary reasonable time following identification cases) that includes a desenption of the disciplinary action, etc.. to (this action should involve expandino the mitiative as necessary. to identify corrective action and that it meets all of communicate its policy apinst th ria discrimination) or in cases that involve:

other failures caused by similar root ol own kc e ld d n h p d causes); and the corrective action for the previous *"#E*" "* S * *" " * * * " " *

(c) It was not likely to be identified .

of Providing information directly to the

'" NRC. allegations of discrimination (after the violation o'ccurred) by routine (b) t as the san or similar root caused by a manager above first line licensee efforts such as normal cause as the violation for which surveillance or quality assurance (QA) supervisor (consistent with current enforcement action was issued; Enforcement Policy classification of activities- (c) It does not substantially change the Severity LevelI or II violations),

in addition, the NRC may refrain from safety significance or the character of allegations of discrimination where a issuing a Notice of Violation for a the regulatory concern arising out of the history of findings of discrimination (by Severity Level II. III. or IV violation that initial violation; and meets the above criteria provided the the DOL or the NRC) or settlements (d) It was or will be corrected. suggests a programmatic rather than an violation was caused by conduct that is including immediate corrective action is lated discrimination problem, or not reasonably linked to present and long term comprehensive corrective allegations of discrimination which performance (normally, violations that action to prevent recurrence, within a are at least 3 years old or violations reasonable time following identification. appear panicularly blatant or egregious.

occurring during plant construction) (e) It would not be categorized at 6. Violations Involving Special and there had not been prior notice so Severity Level 1; Circumstances. Notwithstanding the that the licensee should have reasonably 5. Violations involving Cenain outcome of the normal enforcement identified the violation earher. This Discrimination Issues. Enforcement process addressed in Section VI.A or the exercise of discretion is to place a discretion may be exercised for normal civil penalty assessment process discrimination cases when a licensee addressed in Section VI.B. the NRC may premium on licensees initiating efforts to dentify and correct subtle violations who. without the need for government reduce or refrain from issuing a civil tt at are not likely to be identified by intervention, identifies an issue of penalty or a Notice of Violation for a routine efforts before degraded safety discrimination and takes prompt. Severity Level II. III, or IV violation systems are called upon to work. comprehensive, and effective corrective based on the merits of the case after Section VII.B 3 discretion would not action to address both the particular considering the guidance in this normally be applied to departures from situation and the overall work statement of policy and such factors as the FSAR if: environment for raising safety concerns. the age of the violation, the technical (a) The NRC identifies the violation Similarly enforcement may not be and regulatory significance of the unless it was likely in the staff's view warranted where a complaint is filed violation, the clarity of the requirement, that the licensee would have identified with the Department of Labor (DOL) the appropriateness of the requirement, the violation in light of the defined under Section 211 of the Energy the overall sustained performance of the scope, thoroughness, and schedule of Reorganization Act of 1974, as licensee has been particularly good, and the licensee's initiative (provided the amended but the licensee settles the other relevant circumstances, including schedule provides for completion of the matter before the DOL makes an initial any that may have changed since the licensee's initiative within two years finding of discrimination and addresses violation. This discretion is expected to after October 18.1996; the overall work environment. be exercised only where application of (b) The licensee identifies the Alternatively,if a finding of the normal guidance in the policy is violation as a result of an event or discrimir tion is made, the licensee unwarranted. In addition, the NRC may surveillance or other required testing may choose to settle the case before the refrain from issuing enforcement action NUREG 1600, Rev.1 14

2fi644 Federal Regist:r/Vol. 63. No. 92/ Wednesday, May 13.1998 / Notices for violations resulting frorr, mitters not the particular plant conditions. For exercised, it is to be exercised only if within a licensee's control, such as plants in a shutdown condition, the NRC staff is clearly satisfied that equipment failures that were not exercising enforcement discretion is such action is warranted from a health avoidable by reasonable licensee quality intended to reduce shutdown risk by. and safety perspective.

assurance measures or management again, avoiding testing. inspection or controls. Generally, however, licensees system realignment which is VIII. Enforcement Actions involving are held responsible for the acts of their inappropriate for the particular plant Individuals employees and contractors. conditions. in that, it does not provide Enforcement actions involving Accordingly, this policy should not be a safety benefit or may. in fact. be individuals. including licensed construed to excuse personnel or detrimental to safety in the particuiar operators, are significant personnel contractor errors, plant condition. Exercising enforcement actions, which will be closely controlled C. Exercise of Discretion for an diScreti n f T P lants attempting to andjudiciously applied. An Operating Facility startup is less likely than exercising it enforcement action mvolving an for an operating plant as simply individual will normally be taken only On occasion, circumstances may arise delaying startup does not usually leave when the NRC is satisfied that the where a licensee's compliance with a the plant in a condition in which it Individual fully understood, or should Technical Specification (TS) Limiting could experience undesirable transients. have understood, his or her

, Condition for Operation or with other In such cases. the Commission would responsibility; knew or should have license conditions would involve an expect that discretion would be known. the required actions: and unnecessary plant transient or exercised with respect to equipment or knowingly, or with careless disregard performanceof testing inspection or systems only when it has at least (i.e., with more than mere negligence) system realignment that is inappropriate concluded that. notwithstanding the failed to take required actions which with the specific plant conditions, or conditions of the license: (1) The have actual or potential safety unnecessary delays in plant startup equipment or system does not perform significance. Most transgressions of without a corresponding health and a safety function in the mode in which individuals at the level of Severity Level safety benefit. In these circumstances. operation is to occur: (2) the safety 111 or IV violations will be handled by the NRC staff may choose not to enforce function performed by the equipment or citing only the facility licensee.

the applicable TS or other license system is of only marginal safety More serious violations, including condition. This enforcement discretion, benefit. provided remaining in the those involving the integrity of an designated as a Notice of Enforcement current mode increases the likelihood of individual (e.g., lying to the NRC)

Discretion (NOED). will only be an unnecessary plant transient. or (3) concerning matters within the scope of exercised if the NRC staffis clearly the TS or other license condition the individual's responsibilities, will be satisfied that the action is consistent requires a test. inspection or system considered for enforcement action with protecting the public health and realignment that is inappropriate for the against the individ sal as well as against safety. A licensee seeking the issuance particular plant conditions. m that it the facility licensee. Action against the of a NOED must provide a written does not provide a safety benefit, or individual however, will not be taken justification, or in circumstances where may in fact, be detrimental to safety in if the improper action by the individual good cause is shown, oraljustification the particular plant condition. was caused by management failures.

followed as soon as possible by written The decision to exercise enforcement The following examples of situations justification, which documents the discretion does not change the fact that illustrate this concept:

safety basis for the request and provides a violation will occur nor does it imply

• Inadvertent individual mistakes whatever other information the NRC that enforcement discretion is being resulting from inadequate training or staff deems necessary in making a exercised for any violation that may guidance provided by the facility decision on whether or not to issue a have led to the violation at issue. In licensee.

NOED. each case where the NRC staff has

• Inadvertently missing an The appropriate Regional chosen to issue a NOED. enforcement insignificant procedural requirement Administrator, or his ot her designee. action will normally be taken for the when the action is routine, fairly may issue a NOED where the root causes, to the extent violations uncomplicated, and there is no unusual noncompliance is temporary and were involved, that led to the circumstance indicating that the nonrecurring when an smendment is noncompliance for which enforcement procedures should be referred to and no' practical. The Director. Office of discretion was used. The enforcement followed step-by step.

)

Nuclear Reactor Regulation, or his or action is intended to emphasize that

• Compliance with an express I her designee, may issue a NOED if the licensees should not rely on the NRC s direction of management such as the expected noncompliance will occur authority to exercise enforcement Shift Supervisor or Plant Manager, during the brief period of time it discretion as a routine substitute for resulted in a violation unless the requires the NRC staff to process an compliance or for requesting a license individual did not express his or her emergency or exigent license amendment. concern or objection to the direction.

amendment under the provisions of 10 Finally,it is expected that the NRC

• Individual error directly resulting CFR 50.91(a)(5) or (6). The person staff will exercise enforcement from following the technical advice of exercising enforcement discretion will discretion in this area infrequently. an expert unless the advise was clearly document the decision. Although a plant must shut down. unreasonable and the licensed For an operating plant. this exercise of refueling activities may be suspended, individual should have recognized it as enforcement discretion is intended to or plant startup may be delayed. absent such.

minimize the potential safety the exercise of enforcement discretion.

• Violations resulting from consequences of unnecessary plant the NRC staff is under no obligation to inadequate procedures unless the transients with the accompanying take such a step merely because it has individual used a faulty procedure operational risks and impacts or to been requested. The decision to forego knowing it was faulty and had not eliminate testing. Inspection, or system enforcement is discretionary When attempted to get the procedure realignment which is inappropriate for enforcement discretion is to be corrected.

I 15 NUREG-1600, Rev. I

Federal Register /Vol. 63, No. 92/ Wednesday, May 13.1998 / Notices 26645 Listed below are examples of license conditions (enforcement action examples of enforcement actions that situations which could result in for a willful violation will not ba taken may be appropriate against individuals.

enforcement actions involving if that violation is the result of action The administrative action of a Letter of individuals, licensed or unlicensed. If taken following the NRC's decision to Reprimand may also be considered. In the actions described in these examples forego enforcement of the Technical addition, the NRC may issue Demands are taken by a licensed operator or taken Specification or other license condition for Information to gather information to deliberately by an unlicensed or if the operator meets the enable it to determine whether an order individual. enforcement action may be requirements of 10 CFR 50.54 (x). (i.e., or other enforcement action should be taken directly against the individual. unless the operator acted unreasonably issued.

However. violations involving willful considering all the relevant Orders to NRC-licensed reactor conduct not amounting to deliberate circumstances surrounding the Operators may involve suspension for a action by an unlicensed individual in emergency). specified period, modification, or these situations may result in Normally, some enforcement action is revocation of their individuallicenses.

enforcement action against a licensee taken against a licensee for violations Orders to unlicensed individuals might that may impact an individual. The caused by significant acts of wrongdoing include provisions that would:

e Prohibit involvement in NRC situations include, but are not limited by its employees. contractors, or to. violations that involve: contractors' employees. In deciding licensed activities for a specified period

. Willfully causing a licensee to be in whether to issue an enforcement action of time (normally the period of violation of NRC requirements. to an unlicensed person as well as to the suspension would not exceed 5 years) or until certain conditions are saasfied, e Willfull ftakingaction that would licensee,the NRC recognizesthat have caused a licensee to be in violation Judgments wih r ave to be made on a e g., completing specified training or of NRC requirements but the action did case by case basis. In making these meeting certain qualifications.

not do so because it was detected and e Require notification to the NRC decisions. the NRC will consider factors corrective action was taken. such as the following: before resuming work in licensed e Recognizing a violation of 1. The level of the individual within activities.

• Require the person to tell a procedural requirements and willfully the organization.

not taking corrective action. Prospective employer or customer

2. The individual's training and engaged in licensed activities that the e Willfully defeating alarms which experience as well as knowledge of the have safety significance. Person has been subject to u NRC potentialconsequencesof the rder.

e Unauthorized abandoning of reactor wrongdoing. In the case of a licensed operator's controls. 3. The safety consequences of the e Dereliction of duty. failure t rneet applicable fitness-for-d

• Falsifying records required by NRC '"i$e" benefit to the wrongdoer' e g.' E may '*9" ***** b

• regulations or by the facility license. isse a Mce oNanon m co pora ga a civil penalty to the Part 55 licensee, e Willfully providing. or causing a PejSOna]

,y , f "*""*#* ""*P'"'* "

licensee to provide, an NRC inspector or individual, i e. how closely is the te e an cense. se a ns investigator with inaccurate or individual monitored or audited and incomplete information on a matter ** * " * "***"'*"'

the likelihood of detection (such as a E* * *

• E * * * ' "

material to the NRC. radioBraPh er workin8 independent > in is, receives a confirmed positive test

. Willfully withholding safety the field as contrasted with a team significant information rather than that exceeds the cutofflevels of 10 CFR activity at a Power plant). Part 26 or the facility licensee's cutoff making such information known to * **P loyer s response e.g" appropriate supervisory or technical levels. if lower. However. normally only disciplinary. action taken. a Notice of Violation will be issued for personnel in the licensee's organization. 7. The attitude of the wrongdoer, e g.. the first confirmed positive test in the e Submitting false information and as admission of wrongdoing, acceptance of absence of aggravating circumstances a result gaining unescorted access to a responsibility.

wer plant. such as errors in the performance of nuclear 8. The degree of management licensed duties or evidence of prolonged

. Wil ffully providing false data to a re5 Possibility or culpability. use. In addition. the NRC intends to licensee by a contractor or other person 9 Who identified the misconduct.

who provides test or other services. issue an order to suspend the Part 55 Any PmPosed enforcement action I cense for up to 3 years the second time wt en the data affects the licensee's inv Iving individuals must be issued compliance with 10 CFR Part 50. a licensed operator exceeds those cutoff with the concurrence of the Deputy levels. In the event there are less than Appendix B. or other regulatory Executive Director. The particular requirement. 3 years remaining in the term of the sancuon to be used should be individual's license, the NRC may e Willfully providing false determined on a case-by-case basis.3 certification that components meet the consider not renewing the individual's Notices of \,lolation and Orders are license or not issuing a new license after requirements of their intended use, such as ASME Code, the three year period is completed. The

. Willfully supplying. by contractors o,hN,'[,o'n'2N "e*k'n'"h $g'EN*o"n*j NRC intends to issue an order to revoke of equipment for transportation of of 1974 as amended. NRC wul not normally impose the Part 55 license the third time a radioactive material, casks that do not a caval penalty against an individual. However. licensed operator exceeds those cutoff secuon 234 of the Atomic Energy Act (AEA) gives levels. A licensed operator or applicant comply with their certificates of "*""

compliance. ' '.$ ""l*$n" "

[ s "b'*y""eSr"ed lr who refuses to participate in the drug e Willfully performing unauthorized Section Ils of the AEA to include individuals e and alcohol testing programs bypassing of required reactor or other variety of organizations and any representatives or established by the facility licensee or facility safety systems. agents This gives the Commassion authonty to who is involved in the sale use. or M "

e Willfully taking actions that violate ',,'jl[,["*,j'"j",mP n ofl Possession of an illegal drug is also Technical Specification Limiting 7,qu,,, men, o,,,cijy impowd on them is subject to license suspension.

Conditions for Operation or other committed revocation. or denial.

NUREG 1500, Rev.1 16

26646 Fed:ral Register /Vol. 63. No. 92/ Wednesday May 13.1998 / Notices In addition. the NRC may take and experience; (2) the opportunity and The failure to correct inaccurate or enforcement action against a licensee time available prior to the incomplete information which the

that may impact an individual, where communication to assure the accuracy licensee does not identify as significant the conduct of the individual places in or completeness of the information; (3) normally will not constitute a separate question the NRC's reasonable the degree of intent or negligence, if violation. However, the circumstances assurance that licensed activities will be any, involved; (4) the formality of the surrounding the failure to correct may properly conducted. The NRC may take communication

(5) the reasonableness be considered relevant to the enforcement action for reasons that of NRC reliance on the information; (6) determination of enforcement action for would warrant refusal to issue a license the importance of the information the initial inaccurate or incomplete on an original application. Accordingly. which was wrong or not provided; and statement. For example, an l appropriate enforcement actions may be (7) the reasonableness of the unintentionally inaccurate or l taken regarding matters that raise issues explanation for not providing complete incomplete submission may be treated I of integrity, competence, fitness-for- and accurate information. as a more severe matter if the licensee l duty, or other matters that may not Absent at least careless disregard, an later determines that the initial j i necessarily be a violation of specific incomplete or inaccurate unsworn oral submittal was in error and does not '

l Commission requirements. statement normally will not be subject correct it or if there were clear in the case of an unlicensed person, to enforcement action unless it involves Opportunities to identify the error. If whether a firm or an individual, an information not corrected was significant information provided by a order modifying the facility license may licensee official. However, enforcement recognized by a licensee as significant.

l be issued to require (1) the removal of action may be taken for an a separate citation may be made for the i

the person from all licensed activities unintentionally incomplete or failure to provide significant for a specified period of time or inaccurate oral statement provided to information. In any event, in serious indefinitely. (2) prior notice to the NRC the NRC by a licensee official or others cases where the licensee's actions in not

before utilizing the person in licensed on behalf of a licensee,if a record was c rrecting or providing information l activities, or (3) the licensee to provide made of the oral information and raise questions about its commitment to j notice of the issuance of such an order provided to the licensee thereby safety or its fundamental j to other persons involved in licensed permitting an opportunity to correct the trustworthiness, the Commi' i ' n may activities making reference inquines. In oral information. such as if a transcript exercise its authority to is' ders addition, orders to employers might of the communication or meeting modifying, suspending, or re voking the require retraining, additional oversight, summary containing the error was made license. The Cominission recognizes or independent verification of activities available to the licensee and was not that enforcement determinations must performed by the person. if the person be made on a case-by-case basis. taking is to be involved in licensed activities, subsequently corrected in a timely manner. into consideration the issues described IX Inaccurate and incomplete in this section.

When a licensee has corrected Information inaccurate or incomplete information. X. Enforcement Action Against Non-A violation of the regulations the decision to issue a Notice of Licensees I involving submittal of incomplete and/ Violation for the initial inaccurate or The Commission's enforcement policy or inaccurate information whether or incomplete information normally will is also applicable to non-licensees, not considered a material false be dependent on the circumstances. including contractors and statement, can result in the full range of including the ease of detection of the subcontractors, holders of NRC enforcement sanctions. The labeling of a error, the timeliness of the correction, approvals, e.g., certificates of communication failure as a material whether the NRC or the licensee compliance, early site permits, standard false statement will be made on a case. identified the problem with the design certificates, quality assurance I

by-case basis and will be reserved for communication, and whether the NRC program approvals, or applicants for any egregious violations. Violations relied on the information prior to the of them, and to employees of any of the involving inaccurate or incompleie. correction. Generally, if the matter was foregoing, who knowingly provide information or the failure to provide promptly identified and corrected by components. equipment, or other goods significant information identified by a the licensee prior to reliance by the or services that relate to a licensee's licensee normally will be categorized NRC. or before the NRC raised a activities subject to NRC regulation. The bas "d on the guidance herein, in Section question about the information, no prohibitions and sanctions for any of IV. " Severity of Wolations." and in enforcement action will be taken for the these persons who engage in deliberate Supplement Vll. initial inaccurate or incomplete misconduct or knowing submission of The Commission recognizes that oral information. On the other hand, if the incomplete or inaccurate information informatir n may in some situations be misinformation is identified after the are provided in the rule on deliberate inherently less reliable than written NRC relies on it, or after some question misconduct, e g.10 CFR 30.10 and 50.5.

submittals because of the absence of an is raised regarding the accuracy of the Contractors who supply products or opportunity for reflection and information, then some enforcement services provided for use in nuclear management review. However, the action normally will be taken even if it activities are subject to certain Commission must be able to rely on oral is in fact corrected. However If the requirements designed to ensure that communications from licensee officials initial submittal was accurate when the products or services supplied that concerning significant information. made but later turns out to be erroneous could affect safety are of high quality.

Therefore. in determining whether to because of newly discovered Through procurement contracts with take enforcement action for an oral information or advance in technology, a licensees, suppliers may be required to statement, consideration may be given citation normally would not be have quality assurance programs that to factors such as (1) the degree of appropriate if, when the new meet applicable requirements, e g.,10 knowledge that the commulcator information became available or the CFR Part 50. Appendix B. and 10 CFR should have had, regarding the matter, advancement in technology was made. Part 71. Subpart H. Contractors in view of his or her position, training, the initial submittal was corrected. supplying certain products or services 17 NUREG-1600, Rev. I

Federal Register /Vol. 63. No. 92/ Wednesday, May 13.1998 / Notices 26647 to licensees are subject to the circumstances. to reopening a closed taken the NRC must evaluate the non-enforcement action to increase or compliance both in terms of its airect safety requirements of 10 CFR Part 21 decrease the severity of a sanction or to and regulatory significance and by assessing regarding reporting of defects in basic whether it is part of a pattern of non-com nents. correct the record. Reopening decisions '

W n inspections determine that will be made on a case-by-case basis, are $a3fn eadto d ter nat$nYat violations of NRC requirements have expected to occur rarely, and require the licensee control processes are no longer occurred or that contractors have failed specific approval of the Deputy adequate to ensure protection of the public to fulfill contractual commitments (e.g.. Executive Director. health and safety. Based on the NRC's 10 CFR Part 50. Appendix B) that could evaluation. the appropriate action could A Ppendix A: Safety and Comph,ance include refraining from taking any action.

adversely affect the quality of a safety As commonly understood, safety means taking specific enforcement action. Issuing significant product or s?rvice. orders or providmg input to other regulatory freedom from exposure to danger, or j enforcement action will be taken. pr tecti n fr m harm. In a practical sense, an actions or assessments, such as increased Notices of Violation and civilPenalties activity is deemed to be safe if the perceived oversight (e.g.. increased inspection).

will be used, as appropriate. for licensee risks arejudged to be acceptable.The Atomic

• Since some requirements are more failures to ensure that their contractors Energy Act of 1954. as amended. establishes important to safety than others. the have programs that meet applicable " adequate protection" as the standard of Commission should use a risk-informed requirements. Notices of Violation will safety on which NRC regulation is based. In approach when applying NRC resources be issued for contractors who violate 10 the context of NRC regulation, safety means to the oversight of licensed activities CFR Part 21. Civil penalties will be avoidmg undue risk or, stated another way.

(this includes enforcement).

imposed against individual directors or providmg reasonable assurance of adequate protection for the pubhc in connection with Appendix th Supplements-Enforcement responsible officers of a contractor the tise of source byproduct and special Examples organization who knowingly and nucle 8r m8te"815- This appendix provides examples of consciously fail to provide the notice The definition of compliance is much violations in each of four severity levels as re9utred by 10 CFR 21.21(b)(1). Notices simpler. Compliance simply means meeting guidance in determimng the appropriate of Nonconformance will be used for apphcable regulatory requirements. The severity level for violations in each of eight contractors who fall to meet relatmnship between comphance and safety activity areas (reactor operations. Part 50 commitments related to NRC activities. is discussed below- facility construction. safeguards. health

. Safety is the fundamental regulatory physics. trrasportation, fuel cycle and XI. Referrals to the Department of objective. and compliance with NRC materials operations, miscellaneous matters, justice requirements plays a fundamental role in and emergency preparedness).

Alleged or suspected criminal giving the NRC confidence that safety is bemg maintair ed NRC requirements. Supplement I-Reactor Operations violations of the Atomic Energy Act including technical specifications. other This supplement provide; examples of (and of other relevant Federal laws) are licen5e c nditi n5. rder5 and re8ulati n5- violations in each of the four seventy levels referred to the Department of Justice "*** " *

• 8"* *"'"'* * '9uate as guidance in determining the appropriate (DOJ) for investi8ation Referral to the protection-whic h corresponds to . no undue severity level for violations in the area of DOJ does not preclude the NRC from risk to public health and safety"-through reactor operations.

taking other enforcement action under acceptable de ign, construction. operation. A. Severity levell-Violations involving this policy. However, enforcement maintenance, modification. and quahty for example:

actions will be coordinated with the assurance measures. In the context of -isk- 1. A Safety Limit, as defined in 10 CFR informed regulation. compliance plays a very 50.36 and the Technical Specifications bemg DOJ in accordance with the Memorandum of Understanding important role m ensuring that key exceeded.

assumptions used in underlying nsk and 2. A systemu designed to prevent or between the NRC and the DOJ. 53 FR engineering analyses remain vahd. mitigate a serious safety event not being able 50317 (December 14.1988). e Adequate protecuun is presumptively to perform its intended safety function u XII. Public Disclosure of Enforcement assured by comphance with NRC when actually called upon to work; requirements Circumstances may arise. 3. An accidental criticality; or Actions however. w here new information reveals, for 4 A licensed operator at the controls of a Enforcement actions and licensees

• example, that an unfo:eseen hazard exists or nuclear reactor, or a senior operator directing responses, in accordance with 10 CFR that there is a substantially greater potential licensed activities. involved in procedural 2.790, are publicly available for for a known hazard to occur. In such errors which result in. or exacerbate the situations, the NRC has the statutory consequences of, an alert or higher level insr'ection. In addition, press releases ar, generally issued for orders and civil authority io require hcensee action above and emergency and who, as a result of subsequent beyond exisung regulanons te maintain the testing receives a confirmed positive test penalties and are issued at the same result for drugs or alcohol.

level of protecuan necessary to avoid undue time the order or proposed imposition risk to pubhc health and safety. B. Severity LeveHI-Violations involving of the civil penalty is issued. In . The NRC has the authonty to exercise for example-addition. press releases are usually discretion to permit continued operations- 1. A system designed to prevent or mitigate issued when a proposed civil penalty is despite the existence of a noncompliance- serious safety events not being able to withdrawn or substantially mitigated by where the noncompliance is not significant Perform its intended safety function:

from a risk perspective and does not. in the 2. A licensed operator involved in the use.

some amount. Press releases are not sale, or possession of illegal drugs or the normally issued for Notices of Violation particular circumstances. pose an undue risk c n5u Ption of alcoholic beverages, within that are'not accompanied by orders or to public health and safety. When non.

c mphances occur, the NRC must evaluate the protected area.

proposed civil penalties.

the degree of risk posed by that non-compliance to determine if specific "The term " system" as used in these XIII. Reopening Closed Enforcement supplernents. includes administrauve and Actions immediate acuan is required. Where needed rnanapnal control systems. as well as physical to ensure adequate protection of public If significant new information is health and safety. the NRC may demand received or obtained by NRC which """*dD'""'"".. '"**"'"**I immediate hcensee action, up to and indicates that an enforcement sanction including a shutdown or cessation of re und cy loss o on su s stem does was incorrectly applied, consideration hcensed activines In addition, in defeat the intended safety function as long as the may be given, dependent on the determimng the appropriate action to be other subsystem is operable NUREG 1600, Rev.1 18

26648 Federal Register /Vol. 63. No. 92/ Wednesday, May 13,1998 / Notices

3. A licensed operator at the control of a would be needed before a hcensee would E. Minor Violations nuclear reactor or a senior operator directing have had a reasonable expectation that an licensed activities involved in procedural unreviewed safety question did not extst; A failure to meet 10 CFR 50.59 errors and whc. as a result cf subsequent 12. Programmatic failures (i e.. multiple or requirements that involves a change to the testing, receives a confirmed positive test FSAR description or procedure, or involves recurring failures) to meet the requirements result for drugs or alcohol; or a test or experiment not described in the of 10 CFR 50.59 and/or 50.71(e) that show a

4. Failures to meet 10 CF R 50.59 including significant lack of attention to detail, whether FSAR. w here there was not a reasonable several unreviewed safety questions. or or not such failures involve an unreviewed likelihood that the change to the facility or confhets with technical specifications. procedure or the conduct of the test or safety question. resulting in a current safety expertment would ever be an unreviewed involving a broad spectrum of problems or regulatory concern about the accuracy of I affecting multiple areas. some of which safety question. In the case of a 10 CFR

' the FSAR or a concern that 10 CFR 50 59 impact the operability of required equipment. requirements are not oeing met. Application 50.71(e) violation, where a failure to update C. Seventy Levellll-Wolations involving of this example requires weighing factors the FSAR would not have a material impact for example: on safety or licensed activities. The focus of such as: a) the time period over which the

1. A significant failure to comply with the the minor violation is not on the actual violations occurred and existed. b) the change, test, or experiment. but on the Action Statement for a Technical number of failures, c) whether one or more Specification Limiting Condition for potential safety role of the system.

systems, functions. or pieces of equipment Operation where the appropriate action was were involved and the importance of such equipment, etc., that is being changed. tested.

not taken within the required time. such as: or experimented on.

equipment, functions, or systems, and d) the (a) In a pressurized water reactor. in the potential significance of the failures: Supplement II-Part 50 Facility apphcable modes, having one high-pressure 13. The failure to update the FSAR as Construction safety injection pump inoperable for a period rr quired by 10 CFR 50.7 t(e) where the in excess of that al' owed by the action This supplement provides examples of unupdated F5AR was used in performing a violations in each of the four severity levels statement; or 10 CFR 50 59 evaluation and as a result an as guidance m determining the appropriate (b) In a boiling water reactor, one primary inadequate decision was made demonstrating severity level for violations in the area of Part containment isolation valve inoperable for a a significant regulatory concern; or 50 facility construction period in excess of that allowed by the Mion 14. The failure to make a report required statement. by 10 CFR 50 72 or 50.73 associated with (a)

A. Seventy Levell-Violations involving structures or systems that are completed n in

2. A system d rsigned to prevent or mitigate an unreviewed safety question. (b) a conflict such a manner that they would not have a serious safety event: with a technical specification or (c) any (a) Not being able to perform its intended satisfied their intended safety related other Severity Level III violation. purpose.

function under certain conditions (e g., safety D. Seventy Leve!IV-Violations involving system not operable unless offsite power is for example:

B. Severity levellI-Violations involving for example:

available; materials or components not 1. A less significant failure to comply with environmentally qualified); or 1. A breakdown in the Quality Assurance the Action Statement for a Technical (QA) program as exemplified by deficiencies (b) Being degraded to the extent that a Specification Limitmg Condition for detailed evaluation would be required to in construction QA related to more than one Operation where the appropriate action was work activity (e g., structural, piping.

determine its operabihty (e g , component not taken within the required time, such as:

parameters outside approved limits such as electrical. foundations). These deficiencies (a) In a pressurized water reactor, a 5% normally involve the licensee's failure to pump flow rates. heat exchanger transfer deficiency in the required volume of the characteristics, safety valve Itft setpoints, or conduct adequate audits or to take prompt condensate storage tank; or valve stroke times); corrective action on the basis of such audits (b) In a boilmg water reactor.one and normally involve multiple examples of 3 Inattentiveness to duty on the part of subsystem of the two independent MSIV licensed personnel; deficient construction or construction of leakage control subsystems inoperable; unknown quality due to inadequate program

4. Changes m reactor parameters that cause 2. [Reservedl implementation; or unanticipated reductions in margins of 3. A failure to meet regulatory safety; 2. A structure or system that is completed requirements that have more than minor

5. (Reserved} in such a manner that it could have an safety or environmental significance: adverse effect on the safety of operations.

6 A licensee failure to conduct adequate 4. A failure to make a required Licensee oversight of contractors resulting in the use C. Severity Leve/ III-Violations involving Event Report: for example:

of prcducts or services that are of defective 5. Relatively isolated violations of 10 CFR or indeterminate quality and that have safety 1. A deficiency in a licensee QA program 50.59 not involving severity level II or III for construction related to a single work significance; violations that do not suggest a programmatic activity (e.g., structural, piping. electrical or

7. A breakdown in the control of bcensed failure to meet 10 CFR 50.59. Relatively activities involving a number of violations foundations) This significant deficiency isolated violations or failures would include normally involves the hcensee's failure to tha are related (or, if isolated, that are a number of recently discovered violations ret urring violations) that collectively conduct adequate audits or to take prompt that occun ed over a period of years and are corrective action on the basis of such audits, represent a potentially significant lack of not indicative of a programmatic safety attention or carelessness toward licensed and normally involves multiple examples of concern with meeting 10 CFR 50 59 or deficient constructi% or construction of responsibihties; 50.71(e):

8. A hcensed operator's confirmed positive unknown quality da to madequate program test for drugs or alcohol that does not result

6. A telatively isolated failure to document implementation an evaluation where there is evdence that an 2. A failure to confirm the design safety in a Severity Level I or 11 violation. adequate evaluation was performed poor to

9. Equipment failures caused by requirements of a structure or system as a the change in the facihty or procedures. or result of inadequate preoperational test inadequate or improper mamtenance that the conduct of an expenment or test; program implementation; or substantially comphcates recovery from a 7. A failure to update the FSAR as required plant transient; 3. A failure to make a required 10 CFR by 10 CFR 50.71(e) where an adequate 50 55(e) report.

10. The failure to meet 10 CFR 50 59 where evaluation under 10 CFR 50 59 had been D. Seventy levef IWViolations involving an unreviewed safety question is involved, or performed and documented, or a confbct with a technical specification such failure to meet regulatory requirements 8 A past programmatic failure to meet 10 including one or more Quahty Assurance that a license amendment is required. CFR 50 59 and/or 10 CFR 50.71(e)

11. The failure to perform the required Criterion not amounting to Seventy Level L requirements not inso!ving Seventy Level 11 evaluation under 10 CFR 50 59 prior to or III violations that does not reflect a current implementation of the change in those "The terrn ' completed" as used in this safety or regulatory concern about the supplernent means completion of construcuon situations in w hich no unreviewed safety accuracy of the FSAR or a concern that 10 including renew and acceptante to the question existed, but an extensive evaluation CFR 50 59 requirements are not bemg met. construct.on OA organuanon 19 NUREG 1600, Rev. I

Federal Register /Vol. 63. No. 92/ Wednesday, May 13,1998 / Notices 26649 II. or III violations that have more than minor zone with a high degree of confidence Supplement IV-Health Physics (10 CFR safety or environmental significance, without insider knorledge, or other Part 20)

E* *" This supplement provides examples of Supplement III-Safeguards capability!, degradation of overau system violations in each of the four severity levels This supplement provides examples of 4. A significant failure of the safeguards as guidance in determining the appropriate violations in each of the four severity levels systems designed or used to prevent or detect severity level for violations in the area of as guidance in determining the appropriate the theft, loss. or diversion of strategic SNM; health physics.10 CFR Part 20p

~

severity level for violations in the area of 5. A failure to protect or control classified A. Sevenry Levell-Violations involving safeguards. or safeguards information considered to be for example:

A. Seventy Levell-Violations involving significant while the information is outside 1. A radiation exposure during any year of ~

for example: the protected area and accessible to those not a worker in excess of 25 rems total effective

1. An act of radiological sabotage in which authorized access to the protected area; dose equivalent. 75 rems to the lens of the the secunty system did not function as 6 A significant failure to respond to an eye, or 250 rads to the skin of the whole required and. as a result of the failure there event either in sufficient time to provide body or to the feet. ankles, hands or was a significant event. such as: protection to vital equipment or strategic forearms. or to any other organ or tissue; (a) A Safety Limit. as defined in 10 CFR SNM. or with an adequate response force; 2. A radiation exposure over the gestation 50.36 and the Technical Specifications. was 7. A failure to perform an appropriate penod of the embryo / fetus of a declared exceeded; evaluation or background investigation s pregnant woman in excess of 2.5 rems total (b) A system designed to prevent or that information relevant to the access effective dose equivalent; mitigate a serious safety event was not able determination was not obtained or 3. A radiation exposure during any year of to perform its intended safety function when considered and as a result a person. wh a minor in excess of 2.5 rems total effective actually called upon to work; or would likely not have been granted access by dose equivalent. 7.5 rems to the lens of the j the licensee,if the required investigation or (c) An accidentalcriticality recurred; eye. or 25 rems to the skin of the whole body.

2. The theft loss or diversion of a formula evaluation had been performed, was granted or to the feet, ankles hands or forearms, or quantity " of special nuclear material (SNM); access; or to any other organ or tissue;

8. A breakdown in the security program 4. An annual exposure of a member of the or

3. Actual unauthorized production of a involving a number of violations that are public in excess of 1.0 rem total effective related (or, if isolated, that are recurring dose equivalent; formula quantity of SNM B. Seventy Levelll-Violations involving violations) that collectively reflect a 5. A release of radioactive material to an for example: Potentially significant lack of attention or unrestricted area et concentrations in excess

1. The entry of an unauthorized carelessness toward licensed responsibilities of 50 times the limits for members of the individual 15 who represents a threat into a D Sf"f0f7 If"flIV-Violations involving public as described in 10 CFR vital areaa from outside the protected area; f r example: 20.1302(b)(2)(i); or

2. The theft, joss or diversion of SNM of 1. A failure or inability to control access 6. Disposal of licensed material in such that an unauthorized individual (1 e., quantities or concentrations in excess of 10 i moderate strategic significance " in which authorized to protected area but not to vital the security system did not function as times the limits of 10 CFR 20.2003.

area) could easily gain undetected access int B. SevernylevellI-Violations involving required, or a vital area from inside the protected area or for example:

3. Actual unauthorized production of into a controlled access area; 1. A radiation exposure during any year of gg 2. A failure to respond to a suspected event a worker in excess of 10 rems total effective C.

• W ut-Violations involving for in either a timely manner or with an dose equivalent. 30 rems to the lens of the example: adequate response force; eye. or 100 rems to the skin of the whole

1. A failure or inability to control access 3. A failure to implement 10 CFR Parts 25 body. or to the feet, ankles. hands or through established systems or procedures. and 95 with respect to the information forearms, or in any other organ or tissue; such that an unauthorized individual (i.e.. addressed under Section 142 of the Act and 2. A radiation exposure over the gestation not authorized unescorted access to protected the NRC approved security plan relevant to period of the embryo / fetus of a declared area) could easily gain undetected access i, those pare pregnant woman in excess of 1.0 rem total into a vital area from outside the protected 4. A failure to make. maintain, or provide effective dose equivalent;

3. A radiation exposure during 'iny year of log entries in ace rdance with 10 CFR 73.71 2 A failure to conduct any search at the (c) and (d), where the omitted information (i) a minor in excess of I rem total effective dose access control point or conducting an is not otherwise available in easily equivalent; 3.0 rems to the lens of the eye, retrievable records, and (h) significantly or 10 rems to the skin of the whole body. or tr uctio to he P tecte are o irearms, contributes to the abihty of either the NRC to the feet, ankles, hands or forearms, or to explosives, or incendiary devices and or the licensee to identify a programmatic any other organ or tissue; reasonable facsimiles thereof that could breakdown: 4. An annual exposure of a member of the

5. A failure to conduct a proper search at public in excess of 0.5 rem total effective s gnifja tly assiC t adiologicalsabotage or the access control point; dose equivalent:

3. A fala.re. degradation or other 6. A failure to properly secure or protect 5. A release of radioactive material to an deficiency of the protected area intrusion classified or safeguards information inside unrestricted area at concentrations in excess detection or alarm assessment systems such the protected area which could assist an of 10 times the hmits for members of the that an unauthorized individual who individual in an act of radiological sabotage public as described in 10 CFR represents a threat could predictably or theft of strategic SNM where the 20.1302(b)(2)(i) (except when operation up to circumvent the system or defeat a specific information was not removed from the 0.5 rem a year has been approved by the protected area; Commission under Section 20.1301(c)).

H See 10 CFR 73 2 for the definition of "forrnula 7. A failure to control access such that an 6. Disposal of licensed material in quanurb opportunity exists that could allow quantities or concentrations in excess of five isThe term " unauthorized individual" as used in unauthorized and undetected access into the times the limits of 10 CFR 20.2003; or this supplement means sorneone who was not protected area but which was neither easily 7. A failure to make an immediate authorized for entrance into the area in quesuon, or not likely to be exploitable; notification as required by 10 CFR

" " " " 8. A failure t c nduct an adequate search

",'*" a a d s 20.2202 (a)(1) or (a)(2).

T at the exit from a material access area; C. Severity Leve/ Ill-Violations involving supplement includes vital areas and material access 9. A theft or loss of SNM of low strategic for example:

areas "See 10 CFR 73.2 for the definit on of"special significance that was not detected within the nuclear material of moderate strategic significance " time period specified in the security plan. " Personnel overexposure and am4iated uln determining whether access can be easily other relevant document. or regulation; or uolauons meurred during a life.saving or other gamed. factors such as predictabahty. Identifiabahty 10. Other violations that have more than emergency response effort will te treated on a case-and ease of passage should be considered' minor safeguards significance bocase basis NUREG-1600, Rev.1 20

26650 Federal Pegister/Vol. 63 No. 92/ Wednesday, May 13,1998 / Notices

1. A radiation exposure during any year of any I hour (2 millirem / hour) or 50 millirems loading. or other requirements that could a worker in excess of 5 rems total effecove in a year; reasonably result in the following:

dose equivalent,15 rems to the Icns of the 4. Failure to maintain and implement (a) A significant failure to identify the type.

eye, or 50 rems to the skin of the whole body radiation programs to keep radiation quanuty, or form of material; or to the feet. ankles, hands or formms, or exposures as low as is reasonably achievable:

to any other organ or tissue; (b) A failure of the carrier or recipient to

5. Doses to a member of the public in exercise adequate controls: or

2. A radiation exposure over the gestation excess of any EPA generally applicable penod of the embryo / fetus of a declared (c) A substanual potential for either environmental radiation standards, such as personnel exposure or contamination above pregnant woman in excess of 0.5 rem total 40 CFR Part 190; effective Gse equivalent (except when doses regulatory limits or improper transfer of l

6. A failure to make the 30-day notification rnaterial: .

! are in accordance with the provisions of required by 10 CFR 20.2201(a)(1)(ii) or Section 20.1208(d)); 4. A failure to make required initial 20.2203(a); notification associated with Severity Level III

3. A radiation exposure during any year of

7. A failure to make a timely written report violations: or a minor in excess of 0 5 rem total effective as required by 10 CFR 20 2201(b). 20.2204, or dose equivalent; 1.5 rems to the lens of the 5. A breakdown in the licensee's program 20.2206; for the transportation of licensed material eye. or 5 rems to the skin of the whole body. 8. A failure to report an exceedanceof the or to the feet, ankles, hands or forearms, or involving a number of violations that are to any other organ or tissue: dose constraint established in 10 CFR related (or, if isolated. that are recurring

4. A worker exposure above regulatory 20.1101(d) or a failure to take corrective violations) that collectively reflect a limits when such exposure reflects a action for an exceedance, as required by 10 Potentially significant lack of attention or programmatic (rather than an isolated) CFR 20.1101(d); or carelessness toward licensed responsibihties.

weakness in the radiation control program; 9. Any other matter that has more than a D. SeventyLevel/V-Violations involving

5. An annual exposure of a member of the minor safety health, or environmental for example:

public in excess of 0.1 rem total effective significance. 1. A breach of package integrity without dose equivalent (except when operation up to Supplement V-Transportation external radiation levels exceeding the NRC limit or without contamination levels Cor m ssion n er t on 0 301 c This supplement provides examples of exceeding five times the NRC limits:

6. A release of radioactive material to an vi lati ns in each of the four severity levels 2. Surface contamination in excess of but unrestricted area at concentrations in excess as guidance in determining the appropriate not more than five times the NRC limit; of two times the effluent concentration limits sever ty level f r vi lati ns in the area of 3. A failure to register as an authorized referenced in 10 CFR 20.1302(b)(2)(i) (except NRC transportation requirements. user of an NRC-Certified Transport package; when operation up to 0.5 rem a year has been A. SeventyLevell-Violations involving 4. A noncompliance with shipping papers approved by the Commission under Section for example: marking labeling, placarding. packaging or 20.1301(c))'. 1. Failure to meet transportation loading not amounting to a Severity LevelI,

7. A failure to make a 24-hour notification requirements that resulted in loss of control IL or III violation; required by 10 CFR 20.2202(b) or an f radioactive material with a breach in 5. A failure to demonstrate that packages immediate notification required by 10 CFR Package integrity such that the material for special form radioactive material meets 20.2201(a)(1)(i): caused a radiation exposure to a member of applicable regulatory requirements:

8. A substantial potential for exposures or the public and there was clear potential for 6. A failure to demonstrate that packages releases in excess of the applicable limits in the public to receive more than .1 rem to the meet DOT Specifications for 7A Type A 10 CFR Part 20 Sections 201001-20.2401 whole body: packages: or whether or not an exposure or release occurs: 2. Surface contamination in excess of 50 7. Other violations that have more than

9. Disposal of licensed material not times the NRC limit, or minor safety or environmental significance.

covered in Severity Levels I or II; 3. External radiation levels in excess of 10 10 A release for unrestricted use of times the NRC limit. Supplement VI-Fuel Cycle and Materials contaminated or radioactive material or B. Severity Level #-Violations OPerations equipment that poses a realistic potential for involving for exarnple: This supplement provides examples of exposure of the public to levels or doses 1. Failure to meet transportation vi lations in each of the four severity levels exceeding the annual dose limits for requirements that resulted in loss of control as guidance in determining the appropriate members of the public. or that reflects a of radioactive material with a breach in severity level for violations in the area of fuel programmatic (rather than an isolated) package integrity such that there was a clear cycle and materials operations.

weakness in the radiation control program: potential for the member of the public to A SeverityLeve/I-Violations involving

11. Conduct of licensee activities by a receive more than .1 rem to the whole body; for example:

technically unqualified person: 2. Surface contamination in excess of 10. 1. Radation levels, contamination levels.

12. A significant failure to control licensed but not more than 50 times the NRC limit; or releases that exceed 10 times the limits mate ial: or specified in the license;

3. External radiation levels in excess of l' A breakdown in the radiation safety five but not more than 10 times the NRC 2. A system designed to prevent or mitigate program involving a number of violations limit; or a serious safety event not being operable that are related (or, if isolated. that are when actually required to perform its design

4. A failure to make required initial recurring) that collectively represent a notifications assoctated with Severity Level I function:

poter.tially significant lack of attention or or Il violations. 3. A nuclear criticality accident:

carelessness toward licensed responsibihties. C. Severity Leveilll-Violations involving 4. A failure to follow the procedures of the D. Sever #y LevellV-Violations involving for example: quality management program. required by 10 for example:

1. Surface contamination in excess of five CFR 35.32. that results in a death or serious

1. Exposures in excess of the limits of 10 but not more than 10 times the NRC limit; injury (e g., substantial organ impairment) to CFR 20.1201,20.1207. or 20.12C8 not a patient:

constituting Severary Level I.11. or III 2. External radiation in excess of or.e but not more than five times the NRC limit; 5. A safety limit. as defined in 10 CFR 76.4 violations: the Technical Safety Requirements. or the

3. Any noncompliance with labeling.

2. A release of radioactive material to an placardir.g. shipping paper, packaging. application being exceeded, or unrestricted area at concentrations in excess 6. Significant injury or loss of hfe due to of the limits for members of the public as D ** *'8nSPonation requirements are apphed a loss of control over licensed or cortified referenced in 10 CFR 20.1302(b)(2)(1) (except activities including chemical processes that when operation up to 0.5 rem a year has been t rn re than ne hcensee inv lved in the same are integral to the licensed or certified approved by the Commission under Section *$g",'t7on

, of su h a tre en .' enforcement activity, whether radioactive material is 20.1301(c)). released or not.

acuon will be directed against the responsible 3 A ri diation dose rate in an unrestricted hcensee which. under the circumstances of the B. Severity Levelll-Violations involving or controlled area in excess of 0 002 rem in case. may be one or more of the licensees in,a for example:

21 NUREG-1600, Rev.1

Fed:rcl Regist:r/Vol. 63. No. 92/ Wednesday, May 13,1998 / Notices 26651

1. Rtdiation levels. contamination levels, quantity or type of radioactive material being 3. Failure to follow the quality or relseses that exceed five times the hmits processed or used that has radiological management (QM) program. including specified in the license; significance; procedures.whether or not a

11. A significant failure to meet misadmmistration occurs, provided the

2. A system designed to prevent or mitigate a serious safety event being inoperable; decommissioning requirements including a failures are isolated. do not demonstrate a

3. A substantial programmatic failure in failure to notify the NRC as required by programmatic weakness in the the implementationof the quality regulation or license condition, substantial implementation of the QM program and failure to meet decommissioning standards. have limited consequences if a ,

minigement program required by 10 CFR misadministration is involved; failure to 35.32 that results in a misadministration: failure to conduct and/or complete )

4. A failure to establish, implement, or decommissioning activities in accordance ct'nduct the required program review; or j with regulation or license condition. or failure to take corrective actions as required miintain all criticality controls (or control failure to meet required schedules without by 10 CFR 35.32; systems) for a single nuclear criticahty 4. A failure to keep the records required by scenario when a critical mass of fissile adequatejustification:

miterial was present or reasonably available. 12. A significant failure to comply with the 10 CFR 35.32 or 35.33 action statement for a Technical Safety 5. A less significant failure to comply with such that a nuclear criticality accident was the Action Statement for a Technical Safety possible; or Requirement Limiting Condition for Operation where the appropriate action was Requirement Limiting Condition for

5. The potential for a significant injury or not taken within the required time, such as: Operation when the appropriate action was loss of life due to a loss of control over not taken within the required time; licensed or certified activities including (a) In an autoclave where a containment isolation valve is inoperable for a period in 6. A failure to meet the requirements of 10 <

ch:mical processes that are integral to the CFR 76.68 that does not result in a Severity licensed or certified activity, whether excess of that allowed by the action statement; or Level l,11. or 111 violation; radioactive material is released or not (e g., 7. A failure to make a required written (b) Cranes or other lifting devices engaged movement of hquid UF6 cylinder by event report, as required by 10 CFR in the movement of cyhnders having unapproved methods). inoperable safety components, such as 76.120(d)(2); or C. Seventy levelIII-Violations involving redundant braking systems, or other safety 8. A failure to establish, implement, or for ex:mple: devices for a period in excess of that allowed maintain a criticality control (or control

1. A failure to control access to licensed by the action statement. system) for a single nuclear criticality materials for radiation protection purposes as 13. A system designed to prevent or scenano when the amount of fissile material specified by NRC requirements; mitigate a serious safety event:

available was not, but could have been

2. Possession or use of unauthorized (a) Not being able to perform its intended sufficient to result in a nuclear criticahty.

equipment or materials in the conduct of function under certain conditions (e.g., safety licensee activities which degrades safety; 3 system not operable unless utihties available,

3. Use of radioactive material on humans materials r c mp nentsn t accordingto This supplement provides examples of where such use is not authorized'. specifications); or violations in each of the four severity levels 4 Conduct of licensed activities by a (b) Being degraded to the extent that a as guidance in determining the appropriate technically unqualified or uncertified person; detailed evaluation would be required to seventy level for violations involving

5. A substantial potential for exposures, determine its operabihty; miscellaneous matters.

radattion levels contamination levels, or 14. Changes in parameters that cause A. Severity Level 1-Violations involving ises. including releases of toxic material unanticipated reductions in margins of for example:

.aused by a failure to comply with NRC sgety; 1. Inaccurate or incomplete information regulations. from heensed or certified 15. A significant failure to meet the that is provided to the NRC (a) dehberately activities in excess of regulatory limits; requirements of 10 CFR 76 68. including a with the knowledge of a licensee official that

6. Substantial failure to implement the failure such that a required certificate the information is incomplete or inaccurate, quality management program as required by amendment was not sought; or (b) if the information, had it been complete 10 CFR 35.32 that does not result in a and accurate at the time provided, likely

16. A failure of the certificate holder to would have resulted in regulatory action misadmmistration; failure to report a conduct adequate oversight of contractors misadministration; or programmatic such as an immediate order required by the resulting in the use of products or services weakness in the implementation of the that are of defective or indeterminate quahty Put lic health and safety; quahty management program that results in

2. Incomplete or inaccurate information and that have safety significance; that the NRC requires be kept by a licensee a misadministration; 17. Equipment failures caused by that is (a) incomplete or inaccurate because

7. A breakdown in the control of licensed inadequate or improper maintenance that of falsification by or with the knowledge of activities involving a number of violations substantially complicates recovery from a a licensee official, or (b) if the informauon, that are related (or. If isolated. that are plant transient; had it been complete and accurate when recurrmg violations) that collectively 18. A failure to establish, maintain, or reviewed by the NRC. likely would have repree.ent a potentially significant lack of implement all but one criticality control (or resulted in regulatory action such as an atter. tion or carelessness toward hcensed control systems) for a single nuclear immediate order required by public health responsibihties; criticality scenario when a crit cal mass of and safety considerations; 8 A failure during radiographic fissile material was present or reasonably

3. Information that the licensee has operations. to have present at least two available. such that a nuclear enticahty identified as having significant implications quahfie d individuals or to use radiographic accident was possible; or f r Pubhc health and safety or the common equipment, radiation survey instruments. 19. A failure, during radiographic defense and security ( significant and/or personnel monitoring devices as operations, to stop work after a pocket inf rmation identified by a licensee ) and is required by 10 CFR Part 34; dosimeter is found to have gone off-scale. or deliberately withheld from the Commission,

9. A failure to submit an NRC Form 241 as after an electronic dosimeter reads greater 4. Action by senior corporate management required by 10 CFR 150.20. than 200 mrem, and before a determination in violation of 10 CFR 50.7 or similar

10. A failure to receive required NRC ts made of the individual's actual radiation regulations against an employee; approval prior to the implementation of a exposure. 5. A knowing and intentional failure to chinge in hcensed activities that has D. Severny Leve/ IWViolations involving Provide the notice required by 10 CFR Part radiological or programmatic significant. for example. U' such as a change m ownership; lack of an 1. A failure to mamtain patients RSO or replacement of an RSO with an hospitalized who have cobalt-60. cesium 137 U ln applying the examples in this supplement unquahhed individual; a change in the or indium-192 implants or to conduct " P " ""

location w here hcensed activities are bemg required leakage or contamination tests. or rto ' ![rbbe conducted, or where licensed material is use properly cahbrated equipment. buidance in Section IX. " Inaccurate and incomplete being stored where the new facihties do not 2. Other violations that have more than Informanon." and to the defirution of " licensee meet the safety guidelines; or a change in the minor safety or environmental significance; otticiar connaned in Secnon IV C.

NUREG-1600, Rev.1 22

26652 Fed:r:1 Register /Vol. 63, No. 92/ Wednesday, May 13,1998 / Notices

6. A fztlure to substantially implement the LevelI or Il violation, or (b) if the emergency preparedness. It should be noted required fitness-for-duty program. n information, had it been complete and that citations are not normally made for B. Severity levellI-Violations involving accurate when reviewed by the NRC. likely violations involving emergency preparedness for example: would have resulted in a reconsideration of occurring during emergency exercises.

1. Inaccurate or incomplete information a regulatory position or substantial further However where exercises reveal (i) training.

thtt is provided to the NRC (a) by a licensee inquiry such as an additional inspection or procedural, or repetitive failures for which official because of careless disregard for the a formal request for information:

corrective actions have not been taken. (ii) an completeness or accuracy of the information. , 3. A failure to provide significant overall concern regarding the licensee's or (b) if the information. had it been complete information identified by a heensee,. to the and accurate at the time provided, likely Commission and not amounting to a Severity abihty to implement its plan in a manner that would have resulted in regulatory action LevelI or 11 violation; adequately Protects public health and safety, such as a show cause order or a different 4. An action by first-line supervision or or (iii) Poor self critiques of the licensee's regulatory position; other low level rnanagement in violation of exercises, enforcement action may be

2. Incomplete or inaccurate information 10 CFR 50.7 or similar regulations against an appropriate.

that the NRC requires be kept by a licensee employee; A. Severity Levell-Violations involving which is (a) incomplete or inaccurate because 5. An inadequate review or failure to for example:

of careless disregard for the accuracy of the review such that, if an appropriate review in a general emergency. lleensee failure to information on the part of a hcensee official, had been made as required, a 10 CFR Part 21 promptly (1) correctly classify the event. (2) or (b) if the information, had it been complete report would have been made; make required notlNations to responsible and accurate when reviewed by the NRC. 6. A failure to complete a suitable inquiry Federal. State, and . scal agencies, or (3) likely would have resulted in regulatory on the basis of 10 CFR Part 26. keep records respond to the event (e g., assess actual or action such as a show cause order or a concerning the denial of access. or respond potential offsite consequences, activate different regulatory position; to inquiries concerning denials of access so j emergency response facilities, and augment ]

3. "Significant in'nrmation identified by a that. as a result of the failure a person shift staff.) i 15censee" and not pronded to the previously denied access for fitness-for-duty B. Severity Leve/ II-Violations involving Commission because of careless disregard on reasons was improperly granted access;

7. A failure to take the required action for f r example:

the part of a licensee official;

4. An action by plant management or mid- a person confirmed to have been tested 1. In a site emergency. Lcensee failure to level management in violation of 10 CFR 50.7 positive for illegal drug use or take action for Promptly (1) correctly classify the event. (2) or similar regulations against an employee; onsite alcohol use; not amounting to a make required notifications to responsible

5. A failure to provide the notice required Severity Level II violation: Federal. State, and local agencies. or (3) by 10 CFR Part 21: 8. A failure to assure. as required. that respond to the event (e.g., assess actual or

6. A failure te remove an individual from contractors have an effective fitness-for-duty potential offsite consequences, activate unescorted access who has been involved in program; emergency response facilities, and augment the sale, use. or possession of illegal drugs 9. A breakdown in the fitness-for-duty shift staff); or within the protected area or take action for program involving a number of violations of 2. A licensee failure to meet or implement on duty misuse of alcohol, prescription the basic elements of the fitness for-duty more than one emergency planning standard drus;s. or over-the-counter drugs; program that collectively reflect a significant involving assessment or notification.

7. A failure to take reasonable action when lack of attention or carelessness towards C. Seventy LevelIII-Violations involving observed behavior within the protected area meeting the objectives of 10 CFR 26.10; or for example:

or credible information concerning activities 10. Threats of discrimination or restrictive 1. In an alert, licensee failure to promptly

)

within the protected area indicates possible agreements which are violations under NRC (1) correctly classify the event. (2) make unfitness for duty based on drug or alcohol regulations such as 10 CFR 50.7(f). required notifications to responsible Federal, use: D. Severity LevelIV-Violations involving State, and local agencies, or (3) respond to B. A dehberate failure of the licensee's for example:

the event (e g., assess actual or potential Employee Assistance Program (EAP) to notify 1. Incomplete or inaccurate information of offsite consequences, activate emergency licensee s management when EAP s staff is more than minor significance that is aware that an individual's condition may provided to the NRC but not amounting to a response facihties, and augment shift staff);

adversely affect safety related activities or Seventy LevelI 11. or 111 violation; 2. A licensee failure to meet or implement j

9. The failure of licensee management to 2. Information that the NRC requires be one emergency planning standard involving take effective action in correcting a hostile kept by a licensee and that is incomplete or assessment or notification; or work environment. inaccurate and of more than minor 3. A breakdown in the control of licensed C. Severity LevelIII-Violations involving significance but not amounting to a Severity activities involving a number of violations for example: Level L II, or Ill violation; that are related (or, if isolated. that am

1. Incomplete or inaccurate information 3. An inadequate review or failure to recurring violations) that collectively J

that is provided to the NRC (a) because of review under 10 CFR Part 21 or other represent a potentitily significant lack of  ;

inadequate actions on the part oflicensee procedural violations associated with 10 CFR attention or carelessness toward licensed '

officials but not amounting to a Seventy Part 21 with more than minor sefety responsibilities.

Level! or 11 violation. or (b) if the significance D. Severity levellV-Violations involving information. had it been complete and 4. Violations of the requirements of Part 26 for example

• accurate at the time provided likely would of more than minor significance; A licensee failure to meet or implement have resulted in a reconsideration of a 5. A failure to report acts of licensed any emergency planning standard or regulatory position or substantial further operators or supervisors pursuant to 10 CFR requirement not directly related to inquiry such as an additional inspection or 26.73. or assessment and notification.

a formal request for information: 6. Discrimination cases which, in

2. Incomplete or inaccurate information themselves. do not warrant a Seversty Level Dated at Rockville* Ma'Yl and this 6th day that the NRC requires be kept by a heensee Ill categorization. W ay.1998.

that is (a) incomplete or traccurate because For the Nuclear Regulatory Commission.

of inadequate actions on the part of licensee SUPPl ement VIII-Emergency Preparedness officials but not amounting to a Seventy This supplement provides examples of violations in each of the four severity levels #7 gg.

as guidance in determinmg the appropnate IFR Doc. 98-12534 Filed 5-12-98; 8 45 aml f nW example for violanons for fimess-for duty severity level for violations in the area of relate to violanons of 10 GR Part 26 BILUNG CODE 7s90-01-P l

l 23 NUREG-1600, Rev.1

NRc FORM 335 u.8. NUCLEAR LEGuLAToRY Commission 1. REPORT NUMBER (249) (Assigned by NRC, Add Vol., supp., Ray.,

NRCM 1102.

22oma and Adelendum Numbers,if any.)

BIBLIOGRAPHIC DATA SHEET (500 metructes on me reverse) 1

2. TITLE ANo SUBTITLE NUREG-1600, Rev.1 General Statement of Policy and Procedure for NRC Enforcement Actions (Enforcement Policy) 3. DATE REPORT PUBLISHED MONTH YEAR l

May 1998

4. FIN OR GRANT NUMBER

5. AUTHOR (S) 6. TYPE OF REPORT Office of Enforcement Regulatory

7. PERIOD COVERED (indumve Dates)

8. PERFoRP*tNC' ORGANIZATION - NAME AND ADDRESS (# NRc. prowde Dwsm, omco or Rege, u S. Nupmar Regulatory comtrasson, ami madng amess. # contractor, n r m. are,n.dne anna r Office of Enforcement U.S. Nucles: legulatory Commission Washington, D.C. 20555-0001

9. SPONSORING ORGANilIT 'N - NAME AND ADDRESS (#NRc. type "Same as above* # contractor, prowse NRc Dwoon, omae or Regen, U.S Nucfear Repufstory comnuson, and madng adsens }

Szme as 8 above.

10. SUPPLEMENTARY NOTES

11. ABSTRACT (200 words or sess)

This document includes the U.S. Nuclear Regulatory Commission's (NRC's or Commbsion's) revised General Statement of Policy and Procedure for Enforcement Actions (Enforcement Policy) as it was published in the Federal Register on May 13,1998 (63 FR 26630). The Enforcement Policy is a general statement of policy explaining the NRC's policies and procedures in initiating enforcement actions, and of the presiding officers and the Commission in reviewing these actions. This policy statement is applicable to enforcement matters involving radiological health and safety of the public, including employees' health and safety, the common defense and security, and the environment. This statement of general policy and procedure is published as NUREG-1600, Rev.1 to provide widespread dissemination of the Commission's Enforcement Policy.

However, this is a policy statement and not a regulation. The Commission may deviate from this statement of policy and procedure as appropriate under the circumstances of a particular case.

12. KEY WORDS/DESCRIPTORS (Ost words or parases that m# assst resserenert m bcanng me report) 13 AVARABLITY 6iAILMLNT unlimited NRCEnforcement NRC enforcement olicy huidance 14 sEcuRiry cLAssiricArioN NRC enforcement program trins eage)

NRC enforcement responsibilities unclassified (Trus Report) unclassified

16. NUMBER OF PAGES 16 PRICE NRC f OHM 33S G49)

The form was electrorucelly produced ty Ehie Federal Forms. Inc

1 Federal Recycling Program

TE sG R E

mA F ST P O

P

_ l 5

_ I 5

X 5

_ 1 0

_ Y T 2

_ CM 1 G 0 M C C D I SK N DS

_ a DE

_ l OD C

1 EL RO R

&T 5 N 1ONO 2IOC7N 4CI 1O 60TT T 0 ANIG 5CMEPN 5RR* d I 5NOUNH 0 FCFS 2SNOWa 1UIDIW N

O I

S -1 S 0 t 0 u00 0 3

M-5 s.

S O5 E

SS E C50 SU E

TY2 NE AR I SA T

TO C STD UV i BR DA E L N, LP A R TU O I

CO I

NIT I

FF U EG RN I F Y OTL A

RH N AS E EA P LW C

U .

N L

~

r __

.