MOU Between the NRC and DOJ

This document reflects the Memorandum of Understanding (MOU) between the NRC and the

Department of Justice (DOJ) that was published in the Federal Register on December 14, 1988.

53 FR 50317

Published 12/14/88

Effective 11/23/88

I. Purpose:

The Nuclear Regulatory Commission (NRC) and the Department of Justice (DOJ) enter into this

agreement 1) to provide for coordination of matters that could lead both to enforcement action by

the NRC as well as criminal prosecution by DOJ, and 2) to facilitate the exchange of information

relating to matters within their respective jurisdictions. This agreement does not affect the

procedures and responsibilities set forth in the April 23, 1979 Memorandum of Understanding

between the NRC and the Federal Bureau of Investigation regarding cooperation concerning

threats, theft, or sabotage in the U.S. nuclear industry. Similarly, this agreement does not apply

to those matters arising from internal investigations conducted by the NRC Office of Inspector

and Auditor.

This Memorandum of Understanding is not intended to, does not, and may not be relied upon to,

create any rights or benefits, substantive or procedural, enforceable at law by a party to litigation

with the United States. Nor are any limitations hereby placed on otherwise lawful litigative

prerogatives of DOJ.

II. Background:

Under federal statutes, the NRC has the responsibility to protect the radiological health and

safety of the public, the public interest, the common defense and security, and the environment

(hereinafter collectively referred to as public health and safety), from hazards that might arise

from the material and facilities which it regulates. The enforcement program of the NRC is

designed to fulfill these responsibilities by ensuring compliance with NRC requirements,

obtaining prompt correction of violations and adverse conditions affecting safety, encouraging

improvement of licensee performance, and deterring future violations. In contrast, criminal

prosecutions for willful violations of NRC requirements are the responsibility of the DOJ. Such

prosecutions provide an additional tool to assure compliance and to deter future violations. 

Therefore, it is useful and desirable for the NRC and the DOJ to coordinate to the maximum

practicable extent their different responsibilities.

Under the Atomic Energy Act of 1954, as amended, the NRC has the authority to conduct such

investigators as it may deem necessary or proper to assist it in determining whether enforcement

or other regulatory action is required under the Act, or any regulations, licenses, or orders issued

thereunder.

Enforcement actions within NRC authority include license revocations, suspensions and

modifications, cease and desist orders, civil penalties, and notices of violation. The NRC has the

authority to take such action as it deems necessary to protect the public health and safety,

including the authority, when appropriate, to take immediate action.
The Department of Justice has the responsibility to determine whether to institute criminal

prosecution for violations of all federal statutes, including the Atomic Energy Act of 1954, as

amended. Such violations are typically developed and brought to the attention of DOJ by law

enforcement or investigative agencies, such as the Federal Bureau of Investigation, the Postal

Inspection Service, and the various Treasury enforcement agencies. Similarly, suspected

criminal violations of the Atomic Energy Act, as amended, or Title 18 of the United States Code

may be identified during the course of NRC investigations and referred to DOJ for prosecutive

determination.

Thus, both the NRC and DOJ have authority and responsibility to investigate and take action for

certain violations that may arise out of the same factual matters. Although each agency will carry

out its statutory responsibilities independently, the agencies agree that the public health and

safety would be enhanced by cooperation and timely consultation on proposed enforcement

actions where both civil and criminal violations appear to exist, and by the timely exchange of

information of mutual interest. As an example, it may be appropriate in some cases for the NRC

to stay its hand pending a criminal prosecution. Conversely, in other cases the public health and

safety may require immediate NRC action that could impact a potential criminal prosecution. 

Both agencies recognize that these enforcement decisions are inherently matters of judgment for

each agency to decide for itself, with due regard, however, for the views of the other.

III. Areas of Cooperation:

A. DOJ Notification to NRC of Information Concerning Public

Health and Safety

Should DOJ learn of or discover health or safety related information concerning a matter within

the jurisdiction of the NRC, and not already reasonably known to the NRC, DOJ shall

communicate such information to the NRC as soon as practicable, unless such information is

determined by DOJ to be grand jury material. See Rule 6(e) of the Federal Rules of Criminal

Procedure.

Should DOJ, during grand jury proceedings, discover health or safety related information

concerning a matter within the jurisdiction of the NRC, and not already reasonably known to the

NRC, which may warrant immediate regulatory action to protect the public health and safety,

DOJ promptly will seek a court order, pursuant to the inherent authority of the court to supervise

the grand jury, for disclosure of such information to the NRC for use in connection with its safety

enforcement responsibilities.

B. NRC Notification to DOJ of Suspected Criminal Violations

If NRC learns of or develops information regarding suspected criminal violations on matters not

within the regulatory jurisdiction of the NRC, the NRC will provide the information regarding

such suspected criminal violations to the appropriate investigative agency having jurisdiction

over the matter.

Should NRC learn of or develop information regarding any suspected criminal violations,

including Atomic Energy Act violations, on matters within the regulatory jurisdiction of NRC, it

will notify DOJ in the following manner. With respect to matters not involving special

circumstances, as described below, the NRC's Director, Office of Investigations (OI), will

formally refer the matter to DOJ for prosecutive determination if, on completion of its

investigation, the Director, OI, has determined that sufficient evidence has been developed to
support a reasonable suspicion that a criminal violation has occurred. Whenever any of the

special circumstances listed below occurs, and the Director, OI, has a reasonable suspicion that a

criminal violation has occurred, the Director of OI will promptly notify the DOJ of a matter

involving such special circumstance(s), notwithstanding the fact that an investigation has not yet

been completed by NRC. The special circumstances involve:

(1) a matter where death or serious bodily injury is involved;

(2) a matter under investigation which is likely to generate substantial national news

media attention;

(3) a matter where there is evidence of ongoing activity designed to obstruct the

investigation;

(4) a matter which may require extraordinary investigative measures which require

legal assistance from DOJ.

When a matter arises in which the NRC concludes that regulatory action is necessary to protect

the public health and safety, or that it is necessary to propose a civil penalty, and the Director,

Office of Enforcement (OE), has been informed by the Director, OI, that there is a reasonable

suspicion that a criminal violation has occurred, the Director of OE will promptly notify the DOJ

of such matter, notwithstanding the fact that an investigation has not yet been completed by

NRC. Any action by the NRC is to be coordinated with DOJ as prescribed in Section C. below.

Notification to DOJ will not normally result in cessation of the NRC investigation.

C. Procedure When NRC Regulatory Activities Run Parallel to or May

 Affect Future DOJ Activity

NRC regulatory activities with respect to matters that have been referred to DOJ for criminal

prosecution, or to which the notification provisions of Section B. apply, shall be coordinated as

follows:

1. If the NRC concludes at any time that it lacks reasonable assurance that activities

authorized by a license are being conducted without endangering the health and safety of the

public and the NRC concludes that immediate action is required to protect the public health,

safety, or interest, it will proceed with such action as is necessary to abate the immediate

problem. If time permits, the NRC shall notify DOJ of its proposed action prior to acting, but, in

any event, shall notify DOJ of its action as soon as practicable. This paragraph shall apply only

to those situations that do not allow sufficient time for reasonable consultation.

2. If the NRC concludes that regulatory action is necessary in the public interest,

other than the actions described in paragraphs 1 and 3 herein, the NRC shall first consult with

DOJ concerning its contemplated action. The NRC shall take into account the views and

concerns of DOJ and proceed in a manner that accommodates such views and concerns to the

fullest extent possible, consistent with the regulatory action required. Such cooperation at the

staff level shall include the seeking of a stay, upon DOJ's request, of discovery and hearing rights

during the regulatory proceeding for a reasonable period of time to accommodate the needs of a

criminal investigation or prosecution, provided that DOJ supports such action with appropriate

affidavits or testimony as requested by the presiding officer.

3. If the NRC concludes that it is necessary to propose a civil penalty, it shall notify

DOJ of its contemplated action, and shall defer the initiation of such proceeding until DOJ either

concludes its criminal investigation/prose-cution or consents to the action, except that if a statute
of limitations bar to a civil penalty proceeding is imminent, the NRC may initiate such

proceeding after consultation with DOJ. In such event, the NRC staff shall accommodate the

needs of DOJ by seeking a stay, upon DOJ's request and with DOJ support as described in

paragraph 2 above, of discovery and hearing rights during the civil penalty proceeding for a

reasonable period of time.

D. Time Frame for Notification in Matters Referred to DOJ

1. If, on completion of its investigation, the NRC concludes that civil enforcement

action is appropriate, lt will notify DOJ of its contemplated action normally within 45 days of its

referral to DOJ.

2. DOJ will notify the NRC, normally within 60 days of the referral, of its

preliminary decision as to whether a criminal investigation or prosecution is warranted.

E. NRC Assistance to DOJ

The NRC will make reasonable efforts, at DOJ's request, to provide informal assistance regarding

applicable NRC requirements, technical issues, and factual circumstances. Such assistance

should be requested directly from the Director, Office of Investigations, who will forward

requests for technical assistance to the Deputy Executive Director for Regional Operations. A

request that one or more NRC investigators be assigned to the DOJ investigation or that NRC

technical experts be assigned to assist DOJ and the grand jury should be made in writing. Such

requests must bear the signature of a United States Attorney or Deputy Assistant Attorney

General, as appropriate. These requests will be considered by NRC on a case-by-case basis.

F. Exchange of Information Related to Civil or Criminal Enforcement

Following a DOJ decision not to prosecute a referred case, or at the conclusion of a criminal

proceeding, DOJ will provide NRC, upon its request, information not protected from disclosure

by Rule 6(e), Fed.R.Crim.P., relevant to the associated civil case. Similarly, NRC will provide

information to DOJ, upon its request, on matters being considered by DOJ.

IV. Implementation:

The DOJ official responsible for implementation of the notification responsibilities of this

agreement is the Chief, General Litigation and Legal Advice Section, Criminal Division; the

NRC official responsible for implementation of the notification responsibilities of this agreement

with respect to information regarding suspected criminal violations is the Director, Office of

Investigations; the NRC official responsible for the notification responsibilities of this agreement

with respect to enforcement action is the Director, Office of Enforcement, or the Assistant

General Counsel for Enforcement, as appropriate.
V. Effective Date:

This agreement is effective when signed by both parties.

 Original Signed by

Lando W. Zech, Jr.



 Chairman

U.S. Nuclear Regulatory Commission

Date: October 31, 1988

 Original Signed by

Edward S.G. Dennis 



Assistant Attorney General General

Criminal Division

U.S. Department of Justice

Date: 11/23/1988