25368 Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices

and for whose sites emergency plans are

not required to protect the public health

and safety. The continued application of

10 CFR part 50 emergency plan

requirements would require the licensee

to expend significantly more funds for

emergency preparedness than other

licensees possessing similar source

terms at a single site. Accordingly,

special circumstances, as defined by 10

CFR 50.12(a)(2)(iii), are present.

Section 72.32 establishes emergency

planning requirements for spent nuclear

fuel stored under a specific license

issued pursuant to 10 CFR part 72. The

Trojan ISFSI has an emergency plan,

approved by the NRC on March 31,

1999, to protect the public health and

safety in the event of an accident. The

Commission has determined that the

existing 10 CFR Part 50 requirements

need to be maintained at the Trojan

Nuclear Plant until the spent fuel

located in the spent fuel pool is

physically relocated from the defueled

site to the new security area at the

ISFSI. Upon meeting this criterion, the

NRC finds the exemption from the

emergency planning requirements for a

power reactor site acceptable since new

assurance objectives and general

performance requirements will be in

place by the emergency planning

requirements in 10 CFR 72.32.

IV.

Accordingly, the Commission has

determined that, pursuant to 10 CFR

50.12(a), this exemption is authorized

by law, will not endanger life or

property or the common defense and

security, and is otherwise in the public

interest. Therefore, the Commission

hereby grants Portland General Electric

Company an exemption from the

requirements of 10 CFR 50.54(q), 10

CFR 50.47(b), and Appendix E to 10

CFR part 50 at the Trojan Nuclear Plant,

effective upon completion of the

relocation of all the spent nuclear fuel

from the spent fuel pool to the ISFSI.

Pursuant to 10 CFR 51.32, the

Commission has determined that this

exemption will not have a significant

effect on the quality of the human

environment (64 FR 46423).

This exemption is effective upon

completion of the transfer of the spent

nuclear fuel at the Trojan Nuclear Plant

to the Trojan independent spent fuel

storage installation.

For the Nuclear Regulatory Commission.

Dated at Rockville, Maryland, this 25th day

of April 2000.

John A. Zwolinski,

Director, Division of Licensing Project

Management, Office of Nuclear Reactor

Regulation.

[FR Doc. 00–10742 Filed 4–28–00; 8:45 am]

BILLING CODE 7590–01–P

NUCLEAR REGULATORY

COMMISSION

[NUREG—1600]

Revision of the NRC Enforcement

Policy

AGENCY: Nuclear Regulatory

Commission.

ACTION: Policy Statement: revision.

SUMMARY: The Nuclear Regulatory

Commission (NRC) is publishing a

complete revision of its General

Statement of Policy and Procedure for

NRC Enforcement Actions (NUREG–

1600) (Enforcement Policy or Policy).

This is the fourth complete revision of

the Enforcement Policy since it was first

published as a NUREG document on

June 30, 1995 (60 FR 34381). The NRC

publishes the policy statement as a

NUREG to foster its widespread

dissemination. This revision:

incorporates the Interim Enforcement

Policy that was used during the NRC

Power Reactor Oversight Process Pilot

Plant Study into the main body of the

Enforcement Policy as permanent

guidance; adds an interim Enforcement

Policy for exercising enforcement

discretion for inaccurate or incomplete

performance indicator data for nuclear

power plants; changes examples of

violations for operating reactors

regarding changes, tests, and

experiments; adds examples of

violations for inaccurate or incomplete

performance indicator data; changes

examples of violations involving the

failure to secure, or maintain

surveillance over, licensed material; and

edits existing guidance to assure clarity

of existing policy and consistency with

the intent of the Interim Enforcement

Policy. The intent of this Policy revision

is to continue to move towards a more

risk-informed and performance-based

approach.

DATES: This action is effective on May

1, 2000. Comments on this revision

should be submitted on or before May

31, 2000 and will be considered by the

NRC before the next Enforcement Policy

revision.

ADDRESSES: Submit written comments

to: David L. Meyer, Chief, Rules and

Directives Branch, Division of

Administrative Services, Office of

Administration, Mail Stop: T6D59, U.S.

Nuclear Regulatory Commission,

Washington, DC 20555–0001. Hand

deliver comments to: 11555 Rockville

Pike, Rockville, Maryland, between 7:30

a.m. and 4:15 p.m., Federal workdays.

Copies of comments received may be

examined at the NRC Public Document

Room 2120 L Street, NW. (Lower Level),

Washington, DC.

The NRC’s Office of Enforcement

maintains the current policy statement

on its homepage on the Internet at

www.nrc.gov/OE/.

FOR FURTHER INFORMATION CONTACT: Bill

Borchardt, Director, Office of

Enforcement, (301) 415–2741, or Rene ́e

Pedersen, Senior Enforcement

Specialist, Office of Enforcement, U.S.

Nuclear Regulatory Commission,

Washington, DC 20555–0001, (301) 415–

2741.

SUPPLEMENTARY INFORMATION: The NRC

Enforcement Policy was first issued as

a formal policy statement on September

4, 1980. Since that time, the

Enforcement Policy has been revised on

a number of occasions. Most recently

(November 9, 1999; 64 FR 61142), the

Policy was completely republished.

That revision modified the method for

assessing the significance of violations

that included eliminating the term

‘‘regulatory significance’’ and with it the

practice of escalating the severity level

of a violation based on aggregation or

repetitiveness. The NRC is constantly

refining and improving its policy and

processes to ensure that enforcement

actions are appropriate and contribute

to safety.

On August 9, 1999 (64 FR 43229), the

NRC published an Interim Enforcement

Policy that was used during the NRC

Power Reactor Oversight Process Pilot

Plant Study. The interim policy was

developed as an integral part of the

revised Reactor Oversight Process

(RROP) and was designed to

complement the structured performance

assessment process by focusing on

individual violations. Under the new

process, the Agency Action Matrix

dictates the Commission’s response to

declining performance whether caused

by violations or other concerns. The

intent of the new process is to

implement a unified agency approach

for determining and responding to

performance issues of a licensee that—

1. Maintains a focus on safety and

compliance;

2. Is more consistent with predictable

results;

3. Is more effective and efficient;

4. Is easily understandable; and

5. Decreases unnecessary regulatory

burden.

Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices 25369

1See letter from Ralph Beedle of the Nuclear

Energy Institute, to David L. Meyer of the NRC,

dated February 22, 1999. 2See letter from Robert W. Bishop of NEI, to

David L. Meyer of the NRC, dated September 8,

1999. 3The Commission paper addressing the results of

the revised reactor oversight process pilot program

includes a complete list of the 21 commentors and

their comments.

The new assessment process will use

a Significance Determination Process

(SDP) to characterize inspection

findings based on their risk significance

and performance impact. The SDP will

assign a color band of green, white,

yellow, or red to each inspection finding

to reflect its risk significance. If a

violation is associated with the

inspection finding, the NRC’s

enforcement program will use the

results of the SDP to determine how the

violation should be dispositioned—

thus, supporting a unified approach to

significance. Under this approach,

violations are not normally assigned

severity levels, nor are they subject to

civil penalties. If the finding cannot be

evaluated through the SDP, the NRC

will rely on the guidelines for assessing

significance within the Enforcement

Policy, including the examples of

violations included in the supplements.

These violations will be assigned

severity levels and be subject to civil

penalties.

The interim policy stated that, if

successfully implemented through the

pilot plant study, the Interim

Enforcement Policy would be applied to

all reactors.

In developing this Policy revision, the

NRC considered comments of various

internal and external stakeholders.

Consideration was given to written

comments submitted in response to (1)

SECY–99–007, ‘‘Recommendations for

Reactor Oversight,’’ dated January 8,

1999,1 (2) the announcement of the

Interim Enforcement Policy (August 9,

1999; 64 FR 43229),2 and the July 26,

1999 (64 FR 40394), notice requesting

public comment on the pilot program

for the new regulatory oversight

program.3 Consideration was also given

to information provided during

numerous meetings with representatives

of the industry and public interest

groups as part of the RROP.

The NRC recognizes that additional

changes may be made as part of the

refinement of the RROP and are

anticipated in the materials areas that

will conform to the move toward riskinformed performance-based

inspections in this area.

The more significant changes to the

Enforcement Policy (in the order that

they appear in the Policy) are described

below:

III. Responsibilities

The term ‘‘escalated enforcement

action’’ (included as footnote number

three in this section) has been expanded

to include a Notice of Violation (NOV)

associated with an inspection finding

that the RROP’s Significance

Determination Process (SDP) evaluates

as low to moderate, or greater safety

significance. These actions warrant

consideration as escalated actions given

the risk significance associated with the

violations.

IV.A Assessing Significance

This section has been modified to

address violations associated with

inspection findings evaluated through

the SDP. The NRC will continue to

assess significance by considering: (1)

actual safety consequences; (2) potential

safety consequences, including the

consideration of risk information; (3)

potential for impacting the NRC’s ability

to perform its regulatory function; and

(4) any willful aspects of the violation.

Paragraph (5) has been added to

recognize that with implementation of

the RROP, the NRC will rely on inputs

from the SDP to address violations

associated with inspection findings

evaluated through the SDP. Consistent

with the guidance previously included

in the Interim Policy, violations

associated with findings that the SDP

evaluates as having very low safety

significance (i.e., green) will normally

be described in inspection reports as

Non-Cited Violations (NCVs). The

finding will be categorized by the

assessment process within the licensee

response band. However, a Notice of

Violation (NOV) will be issued if the

issue meets one of the three applicable

exceptions in Section VI.A.1. Violations

associated with findings that the SDP

evaluates as having low to moderate

safety significance (i.e., white),

substantial safety significance (yellow),

or high safety significance (red) will be

cited in an NOV requiring a written

response unless sufficient information is

already on the docket. The finding will

be assigned a color related to its

significance for use by the assessment

process. Violations associated with

issues that do not lend themselves to a

risk analysis (i.e., potential for

impacting the NRC’s function and

willfulness), will be evaluated in

accordance with the guidance in

paragraphs (1) through (4) of this

section. The guidance also notes that the

Commission reserves the use of

discretion for particularly significant

violations (e.g. an accidental criticality)

to assess civil penalties in accordance

with Section 234 of the Atomic Energy

Act of 1954, as amended.

V. Predecisional Enforcement

Conferences

This section has been modified to

address the relationship between

Regulatory Conferences and the

enforcement program. The RROP uses

Regulatory Conferences as opportunities

for the NRC and licensees to discuss the

significance of findings evaluated

through the SDP whether or not

violations are involved. The

Enforcement Policy has been revised to

state that Regulatory Conferences may

be conducted in lieu of predecisional

enforcement conferences if violations

are associated with potentially

significant findings. While the primary

function of a Regulatory Conference is

on the significance of findings, the

significance assessment from the SDP

provides an input into the enforcement

process in terms of whether escalated

enforcement action (i.e., an NOV

associated with a white, yellow, or red

finding) should be issued. Given this

process, a subsequent predecisional

enforcement conference is not normally

necessary. This section has also been

revised to clarify the NRC’s position that

it will provide an opportunity for an

individual to address apparent

violations before the NRC takes

escalated enforcement action. Whether

an individual will be provided an

opportunity for a predecisional

enforcement conference or an

opportunity to address an apparent

violation in writing will depend on the

severity and circumstances of the issue

and the significance of the action the

NRC is contemplating.

VI. Disposition of Violations

This section has been renamed and

modified by consolidating all of the

guidance on the normal approach for

dispositioning violations. Depending on

the significance and circumstances,

violations may be considered minor and

not subject to enforcement action,

dispositioned as NCVs, cited in NOVs,

or issued in conjunction with civil

penalties or orders. The NCV guidance

has been moved out of Section VII.B.1

of the Policy that discusses special types

of mitigation discretion and into this

section because issuance of an NCV is

a routine method for dispositioning

Severity Level IV violations and

violations associated with green SDP

findings. For consistency, the guidance

in Section VI.A.8 for dispositioning

Severity Level IV violations for all

licensees other than power reactor

licensees has been reworded to express

the guidance in terms of conditions

25370 Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices

when an NOV should be issued rather

than criteria for dispositioning a

violation as an NCV. This section also

restores the definition of repetitive

violation (footnote 7) that was

inadvertently deleted during the last

Policy revision. (Consideration of the

repetitive nature of the violation does

not apply to the revised Reactor

Oversight Program.)

VI.B Notice of Violation

This section has been modified to

state that the NRC may require that a

response to an NOV be under oath if the

violation is associated with a low to

moderate, or greater safety significant

finding as evaluated by the SDP. This is

consistent with the agency’s existing

practice of requiring that an NOV

response be under oath for Severity

Level I, II, or III violations.

VI.C Civil Penalty

This section has been modified to

state that civil penalties are also

considered for violations associated

with inspection findings evaluated

through the Reactor Oversight Program’s

SDP that involved actual consequences,

such as an overexposure to the public or

plant personnel above regulatory limits,

failure to make the required

notifications that impact the ability of

Federal, State and local agencies to

respond to an actual emergency

preparedness event (site area or general

emergency), transportation event, or a

substantial release of radioactive

material. This is consistent with the

Interim Policy, in that civil penalties

will not be proposed for violations

associated with low to moderate, or

greater safety significant findings absent

actual consequences.

VII.A Escalation of Enforcement

Sanctions

Consistent with the Interim Policy,

this section has been modified to

recognize that the NRC may also

exercise discretion and assess civil

penalties for violations associated with

findings that the Reactor Oversight

Program’s SDP evaluates as having low

to moderate, or greater safety

significance (i.e., white, yellow, or red)

that are particularly significant.

VII.B Mitigation of Enforcement

Sanctions

This section has been modified by

adding footnote 10 to clarify that the

mitigation discretion addressed in

Sections VII.B.2–VII.B.6 does not

normally apply to violations associated

with issues evaluated by the SDP. The

revised Reactor Oversight Program will

use the Agency Action Matrix to

determine the agency response to

performance issues. The Agency Action

Matrix has provisions to consider

extenuating circumstances that were

previously addressed through

enforcement mitigation.

Supplement I—Reactor Operations

Examples C.9, C.10, D.5, and E

involving changes, tests, and

experiments (i.e., 10 CFR 50.59) have

been modified. The previous examples

were developed in conjunction with the

final rule for 10 CFR 50.59 and were

based on the ‘‘change acceptability’’

criterion, i.e., whether the changes

would be found acceptable by the

Commission. Before publication of the

final rule, the NRC determined that the

change acceptability criterion was not

conducive to efficient or effective

enforcement or regulation. The

inefficiency stemmed from the fact that,

in many instances, the acceptability of

a change could not be determined

without having the type of information

that would be provided with the formal

submission of a license amendment.

Taking enforcement action after the

often lengthy evaluation of a license

amendment was not considered

effective. The examples have been

modified by basing the significance of

the 10 CFR 50.59 or related violation on

the resulting physical, procedural, or

analytical change to the facility as

evaluated through the SDP. This will

ensure a consistent approach for

significance determinations. Violations

will be categorized at Severity Level III

if the resulting change were evaluated

by the SDP as having low to moderate,

or greater safety significance (i.e., white,

yellow, or red finding). Violations will

be categorized at Severity Level IV if the

resulting change were evaluated by the

SDP as having very low safety

significance (i.e., green finding).

Violations will be considered minor if

there was not a reasonable likelihood

that the change requiring 10 CFR 50.59

evaluation would ever require

Commission review and approval prior

to implementation. Violations of 10 CFR

50.71(e) will be considered minor if the

failure to update the FSAR would not

have a material impact on safety or

licensed activities.

Supplement IV—Health Physics (10

CFR Part 20)

This section has been revised by

modifying an existing example (C.11)

and adding examples (D.10 and E) to

address violations involving the failure

to secure, or maintain surveillance over,

licensed material. In addition, the

example for failure to control material

included in Supplement VI (C.1) is

deleted in an effort to consolidate the

guidance on this subject in one area.

The new examples establish a more riskinformed, performance-based approach

to determine the types of security

violations that should be considered

significant, versus those of less serious

concern. This guidance is intended to

focus licensees’ attention on assuring a

program of training, staff awareness,

detection (auditing), and corrective

action (including disciplinary action) to

detect and deter security violations.

Such a program normally is not a

specific regulatory requirement, but

rather a function that licensees need to

perform as an inherent part of their

compliance program. Normally, security

violations that occur despite such a

program will be considered isolated.

Supplement VII—Miscellaneous

Matters

New examples (C.3, D.3, and E) have

been added to address inaccurate or

incomplete Performance Indicator (PI)

data from the Reactor Oversight

Program. Inaccurate or incomplete PI

data that would have caused a PI to

change from green to white are

categorized at Severity Level IV.

Inaccurate or incomplete PI data that

would have caused a PI to change from

green to either yellow or red; white to

either yellow or red; or yellow to red are

categorized at Severity Level III.

Inaccurate PI data that would not have

caused a PI to change color are

considered minor. Consistent with

existing policy, enforcement action is

not taken for minor violations.

Interim Enforcement Policy Regarding

Enforcement Discretion for Inaccurate or

Incomplete Performance Indicator Data

for Nuclear Power Plants.

Because both the NRC and licensees

are in a learning process for the

submission and review of PI data, some

errors are expected. Therefore, the

Enforcement Policy has been modified

by adding an interim policy for

exercising discretion for all non-willful

violations of 10 CFR 50.9 for the

submittal of inaccurate or incomplete PI

data. This policy will remain in effect

until January 31, 2001. Non-willful

violations that are more than minor will

be documented in inspection reports

followed by an explanation that the

NRC is exercising this discretion in

accordance with Section VII.B.6 of the

Enforcement Policy. The interim policy

provides that violations involving

inaccurate or incomplete PI data

submitted to the NRC that would not

have caused a PI to change color do not

normally warrant documentation given

the minimal safety significance.

Consistent with existing policy, no

Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices 25371

enforcement action will be taken for

these minor violations. In addition,

consistent with existing guidance in

Section IX, enforcement action will not

normally be taken for inaccurate PI data

that are corrected before the NRC relies

on the information or before the NRC

raises a question about the information.

Paperwork Reduction Act

This final policy statement does not

contain a new or amended information

collection requirement subject to the

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.). Existing

requirements were approved by the

Office of Management and Budget,

approval number 3150–0136.

Public Protection Notification

If a means used to impose an

information collection does not display

a currently valid OMB control number,

the NRC may not conduct or sponsor,

and a person is not required to respond

to, the information collection.

Small Business Regulatory Enforcement

Fairness Act

In accordance with the Small

Business Regulatory Enforcement

Fairness Act of 1996, the NRC has

determined that this action is not a

‘‘major’’ rule and has verified this

determination with the Office of

Information and Regulatory Affairs,

Office of Management and Budget.

Accordingly, the NRC Enforcement

Policy is revised to read as follows:

General Statement of Policy and

Procedure for NRC Enforcement

Actions

Table of Contents

Preface

I. Introduction and Purpose

II. Statutory Authority and Procedural

Framework

A. Statutory Authority

B. Procedural Framework

III. Responsibilities

IV. Significance of Violations

A. Assessing Significance

1. Actual Safety Consequence

2. Potential Safety Consequence

3. Impacting the Regulatory Process

4. Willfulness

5. Significance Determination Process

B. Assigning Severity Level

V. Predecisional Enforcement Conferences

VI. Disposition of Violations

A. Non-Cited Violation

1. Power Reactor Licensees

2.—7. [Reserved]

8. All Other Licensees

B. Notice of Violation

C. Civil Penalty

1. Base Civil Penalty

2. Civil Penalty Assessment

a. Initial Escalated Action

b. Credit for Actions Related to

Identification

c. Credit for Prompt and Comprehensive

Corrective Action

d. Exercise of Discretion

D. Orders

E. Related Administrative Actions

VII. Exercise of Discretion

A. Escalation of Enforcement Sanctions

1. Civil Penalties

2. Orders

3. Daily Civil Penalties

B. Mitigation of Enforcement Sanctions

1. [Reserved]

2. Violations Identified During Extended

Shutdowns or Work Stoppages

3. Violations Involving Old Design Issues

4. Violations Identified Due to Previous

Enforcement Action

5. Violations Involving Certain

Discrimination Issues

6. Violations Involving Special

Circumstances

C. Notice of Enforcement Discretion for

Power Reactors and Gaseous Diffusion

Plants

VIII. Enforcement Actions Involving

Individuals

IX. Inaccurate and Incomplete Information

X. Enforcement Action Against NonLicensees

XI. Referrals to the Department of Justice

XII. Public Disclosure of Enforcement

Actions

XIII. Reopening Closed Enforcement Actions

Supplements—Violation Examples

Interim Enforcement Policies

Interim Enforcement Policy for Generally

Licensed Devices Containing Byproduct

Material (10 CFR 31.5)

Interim Enforcement Policy Regarding

Enforcement Discretion for Nuclear

Power Plants During the Year 2000

Transition

Interim Enforcement Policy Regarding

Enforcement Discretion for Inaccurate or

Incomplete Performance Indicator Data

for Nuclear Power Plants

Preface

The following policy statement

describes the enforcement policy and

procedures that the U.S. Nuclear

Regulatory Commission (NRC or

Commission) and its staff intends to

follow in initiating and reviewing

enforcement actions in response to

violations of NRC requirements. This

statement of general policy and

procedure is published as NUREG–1600

to foster its widespread dissemination.

However, this is a policy statement and

not a regulation. The Commission may

deviate from this statement of policy as

appropriate under the circumstances of

a particular case.

I. Introduction and Purpose

The Atomic Energy Act of 1954, as

amended, establishes ‘‘adequate

protection’’ as the standard of safety on

which NRC regulations are based. In the

context of NRC regulations, safety

means avoiding undue risk or, stated

another way, providing reasonable

assurance of adequate protection of

workers and the public in connection

with the use of source, byproduct and

special nuclear materials.

While safety is the fundamental

regulatory objective, compliance with

NRC requirements plays an important

role in giving the NRC confidence that

safety is being maintained. NRC

requirements, including technical

specifications, other license conditions,

orders, and regulations, have been

designed to ensure adequate

protection—which corresponds to ‘‘no

undue risk to public health and

safety’’—through acceptable design,

construction, operation, maintenance,

modification, and quality assurance

measures. In the context of riskinformed regulation, compliance plays a

very important role in ensuring that key

assumptions used in underlying risk

and engineering analyses remain valid.

While adequate protection is

presumptively assured by compliance

with NRC requirements, circumstances

may arise where new information

reveals that an unforeseen hazard exists

or that there is a substantially greater

potential for a known hazard to occur.

In such situations, the NRC has the

statutory authority to require licensee

action above and beyond existing

regulations to maintain the level of

protection necessary to avoid undue risk

to public health and safety.

The NRC also has the authority to

exercise discretion to permit continued

operations—despite the existence of a

noncompliance—where the

noncompliance is not significant from a

risk perspective and does not, in the

particular circumstances, pose an undue

risk to public health and safety. When

noncompliance occurs, the NRC must

evaluate the degree of risk posed by that

noncompliance to determine if specific

immediate action is required. Where

needed to ensure adequate protection of

public health and safety, the NRC may

demand immediate licensee action, up

to and including a shutdown or

cessation of licensed activities.

Based on the NRC’s evaluation of

noncompliance, the appropriate action

could include refraining from taking any

action, taking specific enforcement

action, issuing orders, or providing

input to other regulatory actions or

assessments, such as increased oversight

(e.g., increased inspection). Since some

requirements are more important to

safety than others, the NRC endeavors to

use a risk-informed approach when

applying NRC resources to the oversight

of licensed activities, including

enforcement activities.

25372 Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices

4This policy primarily addresses the activities of

NRC licensees and applicants for NRC licenses.

However, this policy provides for taking

enforcement action against non-licensees and

individuals in certain cases. These non-licensees

include contractors and subcontractors, holders of,

or applicants for, NRC approvals, e.g., certificates of

compliance, early site permits, or standard design

certificates, and the employees of these nonlicensees. Specific guidance regarding enforcement

action against individuals and non-licensees is

addressed in Sections VIII and X, respectively.

5The term ‘‘contractor’’ as used in this policy

includes vendors who supply products or services

to be used in an NRC-licensed facility or activity.

6The term ‘‘escalated enforcement action’’ as

used in this policy means a Notice of Violation or

civil penalty for any Severity Level I, II, or III

violation (or problem); a Notice of Violation

associated with an inspection finding that the

Significance Determination Process evaluates as

having low to moderate, or greater, safety

significance (i.e., white, yellow, or red); or any

order based upon a violation.

The primary purpose of the NRC’s

Enforcement Policy is to support the

NRC’s overall safety mission in

protecting the public health and safety

and the environment. Consistent with

that purpose, the policy endeavors to:

• Deter noncompliance by

emphasizing the importance of

compliance with NRC requirements,

and

• Encourage prompt identification

and prompt, comprehensive correction

of violations of NRC requirements.

Therefore, licensees,4 contractors,5

and their employees who do not achieve

the high standard of compliance which

the NRC expects will be subject to

enforcement sanctions. Each

enforcement action is dependent on the

circumstances of the case. However, in

no case will licensees who cannot

achieve and maintain adequate levels of

safety be permitted to continue to

conduct licensed activities.

II. Statutory Authority and Procedural

Framework

A. Statutory Authority

The NRC’s enforcement jurisdiction is

drawn from the Atomic Energy Act of

1954, as amended, and the Energy

Reorganization Act (ERA) of 1974, as

amended.

Section 161 of the Atomic Energy Act

authorizes the NRC to conduct

inspections and investigations and to

issue orders as may be necessary or

desirable to promote the common

defense and security or to protect health

or to minimize danger to life or

property. Section 186 authorizes the

NRC to revoke licenses under certain

circumstances (e.g., for material false

statements, in response to conditions

that would have warranted refusal of a

license on an original application, for a

licensee’s failure to build or operate a

facility in accordance with the terms of

the permit or license, and for violation

of an NRC regulation). Section 234

authorizes the NRC to impose civil

penalties not to exceed $100,000 per

violation per day for the violation of

certain specified licensing provisions of

the Act, rules, orders, and license terms

implementing these provisions, and for

violations for which licenses can be

revoked. In addition to the enumerated

provisions in section 234, sections 84

and 147 authorize the imposition of

civil penalties for violations of

regulations implementing those

provisions. Section 232 authorizes the

NRC to seek injunctive or other

equitable relief for violation of

regulatory requirements.

Section 206 of the Energy

Reorganization Act authorizes the NRC

to impose civil penalties for knowing

and conscious failures to provide

certain safety information to the NRC.

Notwithstanding the $100,000 limit

stated in the Atomic Energy Act, the

Commission may impose higher civil

penalties as provided by the Debt

Collection Improvement Act of 1996.

Under the Act, the Commission is

required to modify civil monetary

penalties to reflect inflation. The

adjusted maximum civil penalty amount

is reflected in 10 CFR 2.205 and this

Policy Statement.

Chapter 18 of the Atomic Energy Act

provides for varying levels of criminal

penalties (i.e., monetary fines and

imprisonment) for willful violations of

the Act and regulations or orders issued

under sections 65, 161(b), 161(i), or

161(o) of the Act. Section 223 provides

that criminal penalties may be imposed

on certain individuals employed by

firms constructing or supplying basic

components of any utilization facility if

the individual knowingly and willfully

violates NRC requirements such that a

basic component could be significantly

impaired. Section 235 provides that

criminal penalties may be imposed on

persons who interfere with inspectors.

Section 236 provides that criminal

penalties may be imposed on persons

who attempt to or cause sabotage at a

nuclear facility or to nuclear fuel.

Alleged or suspected criminal violations

of the Atomic Energy Act are referred to

the Department of Justice for

appropriate action.

B. Procedural Framework

Subpart B of 10 CFR Part 2 of NRC’s

regulations sets forth the procedures the

NRC uses in exercising its enforcement

authority. 10 CFR 2.201 sets forth the

procedures for issuing Notices of

Violation.

The procedure to be used in assessing

civil penalties is set forth in 10 CFR

2.205. This regulation provides that the

civil penalty process is initiated by

issuing a Notice of Violation and

Proposed Imposition of a Civil Penalty.

The licensee or other person is provided

an opportunity to contest the proposed

imposition of a civil penalty in writing.

After evaluation of the response, the

civil penalty may be mitigated, remitted,

or imposed. An opportunity is provided

for a hearing if a civil penalty is

imposed. If a civil penalty is not paid

following a hearing or if a hearing is not

requested, the matter may be referred to

the U.S. Department of Justice to

institute a civil action in District Court.

The procedure for issuing an order to

institute a proceeding to modify,

suspend, or revoke a license or to take

other action against a licensee or other

person subject to the jurisdiction of the

Commission is set forth in 10 CFR

2.202. The licensee or any other person

adversely affected by the order may

request a hearing. The NRC is

authorized to make orders immediately

effective if required to protect the public

health, safety, or interest, or if the

violation is willful. Section 2.204 sets

out the procedures for issuing a Demand

for Information (Demand) to a licensee

or other person subject to the

Commission’s jurisdiction for the

purpose of determining whether an

order or other enforcement action

should be issued. The Demand does not

provide hearing rights, as only

information is being sought. A licensee

must answer a Demand. An unlicensed

person may answer a Demand by either

providing the requested information or

explaining why the Demand should not

have been issued.

III. Responsibilities

The Executive Director for Operations

(EDO) and the principal enforcement

officers of the NRC, the Deputy

Executive Director for Reactor Programs

(DEDR)and the Deputy Executive

Director for Materials, Research and

State Programs (DEDMRS) have been

delegated the authority to approve or

issue all escalated enforcement actions.6

The DEDR is responsible to the EDO for

NRC enforcement programs. The Office

of Enforcement (OE) exercises oversight

of and implements the NRC

enforcement program. The Director, OE,

acts for the Deputy Executive Director in

enforcement matters in his absence or as

delegated.

Subject to the oversight and direction

of OE, and with the approval of the

Deputy Executive Director, where

necessary, the regional offices normally

issue Notices of Violation and proposed

Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices 25373

7The term ‘‘requirement’’ as used in this policy

means a legally binding requirement such as a

statute, regulation, license condition, technical

specification, or order.

civil penalties. However, subject to the

same oversight as the regional offices,

the Office of Nuclear Reactor Regulation

(NRR) and the Office of Nuclear

Material Safety and Safeguards (NMSS)

may also issue Notices of Violation and

proposed civil penalties for certain

activities. Enforcement orders are

normally issued by the Deputy

Executive Director or the Director, OE.

However, orders may also be issued by

the EDO, especially those involving the

more significant matters. The Directors

of NRR and NMSS have also been

delegated authority to issue orders, but

it is expected that normal use of this

authority by NRR and NMSS will be

confined to actions not associated with

compliance issues. The Chief Financial

Officer has been delegated the authority

to issue orders where licensees violate

Commission regulations by nonpayment

of license and inspection fees.

In recognition that the regulation of

nuclear activities in many cases does

not lend itself to a mechanistic

treatment, judgment and discretion

must be exercised in determining the

severity levels of the violations and the

appropriate enforcement sanctions,

including the decision to issue a Notice

of Violation, or to propose or impose a

civil penalty and the amount of this

penalty, after considering the general

principles of this statement of policy

and the significance of the violations

and the surrounding circumstances.

Unless Commission consultation or

notification is required by this policy,

the NRC staff may depart, where

warranted in the public’s interest, from

this policy as provided in Section VII,

‘‘Exercise of Discretion.’’

The Commission will be provided

written notification for the following

situations:

(1) All enforcement actions involving

civil penalties or orders;

(2) The first time that discretion is

exercised for a plant that meets the

criteria of Section VII.B.2;

(3) (Where appropriate, based on the

uniqueness or significance of the issue)

when discretion is exercised for

violations that meet the criteria of

Section VII.B.6; and

(4) All Notices of Enforcement

Discretion (NOEDs) issued involving

natural events, such as severe weather

conditions.

The Commission will be consulted

prior to taking action in the following

situations (unless the urgency of the

situation dictates immediate action):

(1) An action affecting a licensee’s

operation that requires balancing the

public health and safety or common

defense and security implications of not

operating against the potential

radiological or other hazards associated

with continued operation (cases

involving severe weather or other

natural phenomena may be addressed

by the NRC staff without prior

Commission consultation in accordance

with Section VII.C);

(2) Proposals to impose a civil penalty

for a single violation or problem that is

greater than 3 times the Severity Level

I value shown in Table 1A for that class

of licensee;

(3) Any proposed enforcement action

that involves a Severity Level I

violation;

(4) Any action the EDO believes

warrants Commission involvement;

(5) Any proposed enforcement case

involving an Office of Investigations

(OI) report where the NRC staff (other

than the OI staff) does not arrive at the

same conclusions as those in the OI

report concerning issues of intent if the

Director of OI concludes that

Commission consultation is warranted;

and

(6) Any proposed enforcement action

on which the Commission asks to be

consulted.

IV. Significance of Violations

Regulatory requirements 7 have

varying degrees of safety, safeguards, or

environmental significance. Therefore,

the relative importance or significance

of each violation is assessed as the first

step in the enforcement process.

A. Assessing Significance

In assessing the significance of a

noncompliance, the NRC considers four

specific issues: (1) actual safety

consequences; (2) potential safety

consequences, including the

consideration of risk information; (3)

potential for impacting the NRC’s ability

to perform its regulatory function; and

(4) any willful aspects of the violation.

For certain types of violations at

commercial nuclear power plants, the

NRC relies on information from the

Reactor Oversight Process’s Significance

Determination Process (SDP). The SDP

is used to evaluate the actual and

potential safety significance of

inspection findings to provide a riskinformed framework for discussing and

communicating the significance of

inspection findings. Violations

associated with findings evaluated

through the SDP are addressed in

Section IV.A.5. Violations at

commercial nuclear power plants that

are associated with inspection findings

that cannot be evaluated through the

SDP (i.e., violations that may impact the

NRC’s ability for oversight of licensed

activities and violations that involve

willfulness, including discrimination)

are evaluated in accordance with the

guidance in Sections IV.A.1 through

IV.A.4 and Section IV.B. Violations that

are associated with inspection findings

with actual consequences are evaluated

in accordance with the guidance in

Section IV.A.5.c.

1. Actual Safety Consequences. In

evaluating actual safety consequences,

the NRC considers issues such as actual

onsite or offsite releases of radiation,

onsite or offsite radiation exposures,

accidental criticalities, core damage,

loss of significant safety barriers, loss of

control of radioactive material or

radiological emergencies. (See Section

IV.A.5.c for guidance on violations that

are associated with SDP findings with

actual consequences.)

2. Potential Safety Consequences. In

evaluating potential safety

consequences, the NRC considers the

realistic likelihood of affecting safety,

i.e., the existence of credible scenarios

with potentially significant actual

consequences. The NRC will use risk

information wherever possible in

assessing significance and assigning

severity levels. A higher severity may be

warranted for violations that have

greater risk significance and a lower

severity level may be appropriate for

issues that have low risk significance.

Duration is an appropriate consideration

in assessing the significance of

violations.

3. Impacting the Regulatory Process.

The NRC considers the safety

implications of noncompliances that

may impact the NRC’s ability to carry

out it statutory mission.

Noncompliances may be significant

because they may challenge the

regulatory envelope upon which certain

activities were licensed. These types of

violations include failures such as:

failures to provide complete and

accurate information, failures to receive

prior NRC approval for changes in

licensed activities, failures to notify

NRC of changes in licensed activities,

failure to perform 10 CFR 50.59

analyses, reporting failures, etc., Even

inadvertent reporting failures are

important because many of the

surveillance, quality control, and

auditing systems on which both the

NRC and its licensees rely in order to

monitor compliance with safety

standards are based primarily on

complete, accurate, and timely

recordkeeping and reporting. The

existence of a regulatory process

violation does not automatically mean

that the issue is safety significant. In

25374 Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices

8The term ‘‘licensee official’’ as used in this

policy statement means a first-line supervisor or

above, a licensed individual, a radiation safety

officer, or an authorized user of licensed material

whether or not listed on a license. Notwithstanding

an individual’s job title, severity level

categorization for willful acts involving individuals

who can be considered licensee officials will

consider several factors, including the position of

the individual relative to the licensee’s

organizational structure and the individual’s

responsibilities relative to the oversight of licensed

activities and to the use of licensed material.

determining the significance of a

violation, the NRC will consider

appropriate factors for the particular

regulatory process violation. These

factors may include: the significance of

the underlying issue, whether the

failure actually impeded or influenced

regulatory action, the level of

individuals involved in the failure and

the reasonableness of the failure given

their position and training, and whether

the failure invalidates the licensing

basis. Factors to consider for failures to

provide complete and accurate

information are addressed in Section IX

of this policy.

Unless otherwise categorized in the

Supplements to this policy statement,

the severity level of a violation

involving the failure to make a required

report to the NRC will be based upon

the significance of and the

circumstances surrounding the matter

that should have been reported.

However, the severity level of an

untimely report, in contrast to no report,

may be reduced depending on the

circumstances surrounding the matter.

A licensee will not normally be cited for

a failure to report a condition or event

unless the licensee was actually aware

of the condition or event that it failed

to report. A licensee will, on the other

hand, normally be cited for a failure to

report a condition or event if the

licensee knew of the information to be

reported, but did not recognize that it

was required to make a report.

4. Willfulness. Willful violations are

by definition of particular concern to

the Commission because its regulatory

program is based on licensees and their

contractors, employees, and agents

acting with integrity and

communicating with candor. Willful

violations cannot be tolerated by either

the Commission or a licensee.

Therefore, a violation may be

considered more significant than the

underlying noncompliance if it includes

indications of willfulness. The term

‘‘willfulness’’ as used in this policy

embraces a spectrum of violations

ranging from deliberate intent to violate

or falsify to and including careless

disregard for requirements. Willfulness

does not include acts which do not rise

to the level of careless disregard, e.g.,

negligence or inadvertent clerical errors

in a document submitted to the NRC. In

determining the significance of a

violation involving willfulness,

consideration will be given to such

factors as the position and

responsibilities of the person involved

in the violation (e.g., licensee official 8

or non-supervisory employee), the

significance of any underlying violation,

the intent of the violator (i.e., careless

disregard or deliberateness), and the

economic or other advantage, if any,

gained as a result of the violation. The

relative weight given to each of these

factors in arriving at the significance

assessment will be dependent on the

circumstances of the violation.

However, if a licensee refuses to correct

a minor violation within a reasonable

time such that it willfully continues, the

violation should be considered at least

more than minor. Licensees are

expected to take significant remedial

action in responding to willful

violations commensurate with the

circumstances such that it demonstrates

the seriousness of the violation thereby

creating a deterrent effect within the

licensee’s organization.

5. Significance Determination

Process. The Reactor Oversight Process

uses a Significance Determination

Process (SDP) to determine the safety

significance of most inspection findings

identified at commercial nuclear power

plants. Depending on their significance,

inspection findings are assigned colors

of green, white, yellow, or red. The

Reactor Oversight Process uses an

Agency Action Matrix to determine the

appropriate agency response. If

violations that are more than minor are

associated with these inspection

findings, they will be documented and

may or may not be cited depending on

the safety significance. These violations

are not normally assigned severity

levels, nor are they normally subject to

civil penalties.

Note: Violations associated with inspection

findings that are not evaluated through the

SDP will be assigned severity levels in

accordance with Section IV.B and will be

subject to civil penalties in accordance with

Section VI.C.

a. Violations Associated With Findings

of Very Low Safety Significance

Violations associated with findings

that the SDP evaluates as having very

low safety significance (i.e., green) will

normally be described in inspection

reports as Non-Cited Violations (NCVs).

The finding will be categorized by the

assessment process within the licensee

response band. However, a Notice of

Violation (NOV) will be issued if the

issue meets one of the three applicable

exceptions in Section VI.A.1. The

Commission recognizes that violations

exist below this category that are of

minimal safety or environmental

significance. While licensees must

correct these minor violations, they

don’t normally warrant documentation

in inspection reports and do not warrant

enforcement action. To the extent such

violations are described, they will be

noted as violations of minor significance

that are not subject to enforcement

action.

b. Violations Associated With Findings

of Low to Moderate, or Greater Safety

Significance

Violations associated with findings

that the SDP evaluates as having low to

moderate safety significance (i.e.,

white), substantial safety significance

(yellow), or high safety significance

(red) will be cited in an NOV requiring

a written response unless sufficient

information is already on the docket.

The finding will be assigned a color

related to its significance for use by the

assessment process. The Commission

reserves the use of discretion for

particularly significant violations (e.g.

an accidental criticality) to assess civil

penalties in accordance with Section

234 of the Atomic Energy Act of 1954,

as amended.

c. Violations Associated With Actual

Consequences

Violations that involve actual

consequences such as an overexposure

to the public or plant personnel above

regulatory limits, failure to make the

required notifications that impact the

ability of Federal, State and local

agencies to respond to an actual

emergency preparedness (site area or

general emergency), transportation

event, or a substantial release of

radioactive material, will be assigned

severity levels and will be subject to

civil penalties.

B. Assigning Severity Level

For purposes of determining the

appropriate enforcement action,

violations (except the majority of those

associated with findings evaluated

though the SDP) are normally

categorized in terms of four levels of

severity to show their relative

importance or significance within each

of the following eight activity areas:

I. Reactor Operations;

II. Facility Construction;

III. Safeguards;

IV. Health Physics;

V. Transportation;

VI. Fuel Cycle and Materials Operations;

Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices 25375

9Regulatory concern pertains to primary NRC

regulatory responsibilities, i.e., safety, safeguards,

and the environment.

VII. Miscellaneous Matters; and

VIII. Emergency Preparedness.

Licensed activities will be placed in

the activity area most suitable in light of

the particular violation involved,

including activities not directly covered

by one of the listed areas, e.g., export

license activities. Within each activity

area, Severity Level I has been assigned

to violations that are the most

significant and Severity Level IV

violations are the least significant.

Severity Level I and II violations are of

very significant regulatory concern.9 In

general, violations that are included in

these severity categories involve actual

or high potential consequences on

public health and safety. Severity Level

III violations are cause for significant

regulatory concern. Severity Level IV

violations are less serious but are of

more than minor concern. Violations at

Severity Level IV involve

noncompliance with NRC requirements

that are not considered significant based

on risk. This should not be

misunderstood to imply that Severity

Level IV issues have no risk

significance.

The Commission recognizes that there

are other violations of minor safety or

environmental concern that are below

the level of significance of Severity

Level IV violations. While licensees

must correct these minor violations,

they don’t normally warrant

documentation in inspection reports or

inspection records and do not warrant

enforcement action. To the extent such

violations are described, they will be

noted as violations of minor significance

that are not subject to enforcement

action.

Comparisons of significance between

activity areas are inappropriate. For

example, the immediacy of any hazard

to the public associated with Severity

Level I violations in Reactor Operations

is not directly comparable to that

associated with Severity Level I

violations in Facility Construction.

Supplements I through VIII provide

examples and serve as guidance in

determining the appropriate severity

level for violations in each of the eight

activity areas. However, the examples

are neither exhaustive nor controlling.

In addition, these examples do not

create new requirements. Each is

designed to illustrate the significance

that the NRC places on a particular type

of violation of NRC requirements. Each

of the examples in the supplements is

predicated on a violation of a regulatory

requirement.

The NRC reviews each case being

considered for enforcement action on its

own merits to ensure that the severity of

a violation is characterized at the level

best suited to the significance of the

particular violation.

V. Predecisional Enforcement

Conferences

When the NRC learns of a potential

violation for which escalated

enforcement action appears to be

warranted, or recurring nonconformance

on the part of a contractor, the NRC may

provide an opportunity for a

predecisional enforcement conference

with the licensee, contractor, or other

person before taking enforcement

action. The purpose of the predecisional

enforcement conference is to obtain

information that will assist the NRC in

determining the appropriate

enforcement action, such as: (1) a

common understanding of facts, root

causes, and missed opportunities

associated with the apparent violations;

(2) a common understanding of

corrective actions taken or planned; and

(3) a common understanding of the

significance of issues and the need for

lasting comprehensive corrective action.

The NRC may conduct Regulatory

Conferences (in lieu of predecisional

enforcement conferences) to discuss the

significance of findings evaluated by the

Reactor Oversight Process’s SDP when

apparent violations are associated with

potentially significant findings. The

purpose of Regulatory Conferences is to

get information from licensees on the

significance of findings evaluated

through the SDP whether or not

violations are involved. Because the

significance assessment from the SDP

determines whether or not escalated

enforcement action will be issued (i.e.,

a Notice of Violation associated with a

white, yellow, or red SDP finding), a

subsequent predecisional enforcement

conference is not normally necessary.

If the NRC concludes that it has

sufficient information to make an

informed enforcement decision

involving a licensee, contractor, or

vendor, a predecisional enforcement

conference will not normally be held. If

a predecisional enforcement conference

is not held, the licensee may be given

an opportunity to respond to a

documented apparent violation

(including its root causes and a

description of planned or implemented

corrective actions) before the NRC takes

enforcement action. However, if the

NRC has sufficient information to

conclude that a civil penalty is not

warranted, it may proceed to issue an

enforcement action without first

obtaining the licensee’s response to the

documented apparent violation.

The NRC will normally provide an

opportunity for an individual to address

apparent violations before the NRC

takes escalated enforcement action.

Whether an individual will be provided

an opportunity for a predecisional

enforcement conference or an

opportunity to address an apparent

violation in writing will depend on the

circumstances of the case, including the

severity of the issue, the significance of

the action the NRC is contemplating,

and whether the individual has already

had an opportunity to address the issue

(e.g., an Office of Investigation or a

Department of Labor hearing).

During the predecisional enforcement

conference, the licensee, contractor, or

other persons will be given an

opportunity to provide information

consistent with the purpose of the

conference, including an explanation to

the NRC of the immediate corrective

actions (if any) that were taken

following identification of the potential

violation or nonconformance and the

long-term comprehensive actions that

were taken or will be taken to prevent

recurrence. Licensees, contractors, or

other persons will be told when a

meeting is a predecisional enforcement

conference.

A predecisional enforcement

conference is a meeting between the

NRC and the licensee. Conferences are

normally held in the regional offices

and are normally open to public

observation. Predecisional enforcement

conferences will not normally be open

to the public if the enforcement action

is being contemplated:

(1) Would be taken against an

individual, or if the action, though not

taken against an individual, turns on

whether an individual has committed

wrongdoing;

(2) Involves significant personnel

failures where the NRC has requested

that the individual(s) involved be

present at the conference;

(3) Is based on the findings of an NRC

Office of Investigations report that has

not been publicly disclosed; or

(4) Involves safeguards information,

Privacy Act information, or information

which could be considered proprietary;

In addition, conferences will not

normally be open to the public if:

(5) The conference involves medical

misadministrations or overexposures

and the conference cannot be conducted

without disclosing the exposed

individual’s name; or

(6) The conference will be conducted

by telephone or the conference will be

conducted at a relatively small

licensee’s facility.

25376 Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices

Notwithstanding meeting any of these

criteria, a predecisional enforcement

conference may still be open if the

conference involves issues related to an

ongoing adjudicatory proceeding with

one or more interveners or where the

evidentiary basis for the conference is a

matter of public record, such as an

adjudicatory decision by the

Department of Labor. In addition,

notwithstanding the normal criteria for

opening or closing predecisional

enforcement conferences, conferences

may either be open or closed to the

public, with the approval of the

Executive Director for Operations, after

balancing the benefit of the public’s

observation against the potential impact

on the agency’s decision-making process

in a particular case.

The NRC will notify the licensee that

the predecisional enforcement

conference will be open to public

observation. Consistent with the

agency’s policy on open meetings

(included on the NRC’s Public Meeting

Web site), the NRC intends to announce

open conferences normally at least 10

calendar days in advance of

conferences. Conferences will be

announced on the Internet at the NRC

Office of Enforcement’s homepage

(www.nrc.gov/OE) and on the Public

Meeting Web site (www.nrc.gov/NRC/

PUBLIC/meet.html). Individuals who do

not have Internet access may get

assistance on scheduled conferences by

contacting the NRC staff at the Public

Document Room, by calling toll-free 1–

800–397–4209. In addition, the NRC

will normally issue a press release and

notify appropriate State liaison officers

that a predecisional enforcement

conference has been scheduled and that

it is open to public observation.

The public attending open

predecisional enforcement conferences

may observe but may not participate in

the conference. The purpose of

conducting open conferences is not to

maximize public attendance, but rather

to provide the public with opportunities

to be informed of NRC activities

consistent with the NRC’s ability to

exercise its regulatory and safety

responsibilities. Therefore, members of

the public will be allowed access to the

NRC regional offices to attend open

enforcement conferences in accordance

with the ‘‘Standard Operating

Procedures For Providing Security

Support For NRC Hearings and

Meetings,’’ published November 1, 1991

(56 FR 56251). These procedures

provide that visitors may be subject to

personnel screening, that signs, banners,

posters, etc., not larger than 18′′ be

permitted, and that disruptive persons

may be removed. The open conference

will be terminated if disruption

interferes with a successful conference.

NRC’s Predecisional Enforcement

Conferences (whether open or closed)

normally will be held at the NRC’s

regional offices or in NRC Headquarters

Offices and not in the vicinity of the

licensee’s facility.

For a case in which an NRC Office of

Investigations (OI) report finds that

discrimination as defined under 10 CFR

50.7 (or similar provisions in Parts 30,

40, 60, 70, or 72) has occurred, the OI

report may be made public, subject to

withholding certain information (i.e.,

after appropriate redaction), in which

case the associated predecisional

enforcement conference will normally

be open to public observation. In a

predecisional enforcement conference

where a particular individual is being

considered potentially responsible for

the discrimination, the conference will

remain closed. In either case (i.e.,

whether the conference is open or

closed), the employee or former

employee who was the subject of the

alleged discrimination (hereafter

referred to as ‘‘complainant’’) will

normally be provided an opportunity to

participate in the predecisional

enforcement conference with the

licensee/employer. This participation

will normally be in the form of a

complainant statement and comment on

the licensee’s presentation, followed in

turn by an opportunity for the licensee

to respond to the complainant’s

presentation. In cases where the

complainant is unable to attend in

person, arrangements will be made for

the complainant’s participation by

telephone or an opportunity given for

the complainant to submit a written

response to the licensee’s presentation.

If the licensee chooses to forego an

enforcement conference and, instead,

responds to the NRC’s findings in

writing, the complainant will be

provided the opportunity to submit

written comments on the licensee’s

response. For cases involving potential

discrimination by a contractor, any

associated predecisional enforcement

conference with the contractor would be

handled similarly. These arrangements

for complainant participation in the

predecisional enforcement conference

are not to be conducted or viewed in

any respect as an adjudicatory hearing.

The purpose of the complainant’s

participation is to provide information

to the NRC to assist it in its enforcement

deliberations.

A predecisional enforcement

conference may not need to be held in

cases where there is a full adjudicatory

record before the Department of Labor.

If a conference is held in such cases,

generally the conference will focus on

the licensee’s corrective action. As with

discrimination cases based on OI

investigations, the complainant may be

allowed to participate.

Members of the public attending open

predecisional enforcement conferences

will be reminded that (1) the apparent

violations discussed at predecisional

enforcement conferences are subject to

further review and may be subject to

change prior to any resulting

enforcement action and (2) the

statements of views or expressions of

opinion made by NRC employees at

predecisional enforcement conferences,

or the lack thereof, are not intended to

represent final determinations or beliefs.

When needed to protect the public

health and safety or common defense

and security, escalated enforcement

action, such as the issuance of an

immediately effective order, will be

taken before the conference. In these

cases, a conference may be held after the

escalated enforcement action is taken.

VI. Disposition of Violations

This section describes the various

ways the NRC can disposition

violations. The manner in which a

violation is dispositioned is intended to

reflect the seriousness of the violation

and the circumstances involved. As

previously stated, minor violations are

not the subject of enforcement action.

While licensees must correct these

violations, they don’t normally warrant

documentation in inspection reports or

inspection records. Other violations are

documented and may be dispositioned

as Non-Cited Violations, cited in

Notices of Violation, or issued in

conjunction with civil penalties or

various types of orders. The NRC may

also choose to exercise discretion and

refrain from issuing enforcement action.

(See Section VII.B, ‘‘Mitigation of

Enforcement Sanctions.’’) As discussed

further in Section VI.E, related

administrative actions such as Notices

of Nonconformance, Notices of

Deviation, Confirmatory Action Letters,

Letters of Reprimand, and Demands for

Information are used to supplement the

enforcement program. In determining

the appropriate regulatory response, the

NRC will consider enforcement actions

taken by other Federal or State

regulatory bodies having concurrent

jurisdiction, such as in transportation

matters.

A. Non-Cited Violation (NCV)

A Non-Cited Violation (NCV) is the

term used to describe a method for

dispositioning a Severity Level IV

violation or a violation associated with

a finding that the Reactor Oversight

Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices 25377

10A violation is considered ‘‘repetitive’’ if it

could reasonably be expected to have been

prevented by the licensee’s corrective action for a

previous violation or a previous licensee finding

that occurred within the past 2 years of the

inspection at issue, or the period within the last two

inspections, whichever is longer. 11An NOV is warranted when a licensee

identifies a violation as a result of an event where

the root cause of the event is obvious or the licensee

had prior opportunity to identify the problem but

failed to take action that would have prevented the

event. Disposition as an NCV may be warranted if

the licensee demonstrated initiative in identifying

the violation’s root cause.

Process’s SDP evaluates as having very

low safety significance (i.e., green).

These issues are documented as

violations in inspection reports (or

inspection records for some materials

licensees) to establish public records of

the violations, but are not cited in

Notices of Violation which normally

require written responses from licensees

(see Section VI.B below). Dispositioning

violations in this manner does not

eliminate the NRC’s emphasis on

compliance with requirements nor the

importance of maintaining safety.

Licensees are still responsible for

maintaining safety and compliance and

must take steps to address corrective

actions for these violations. While

licensees are not required to provide

written responses to NCVs, this

approach allows licensees to dispute

violations described as NCVs. The

following sections describe the

circumstances under which a violation

may or may not be dispositioned as an

NCV.

1. Power Reactor Licensees

Severity Level IV violations and

violations associated with green SDP

findings are normally dispositioned as

NCVs. Violations dispositioned as NCVs

will be described in inspection reports,

although the NRC will close these

violations based on their being entered

into the licensee’s corrective action

program. At the time a violation is

closed in an inspection report, the

licensee may not have completed its

corrective actions or begun the process

to identify the root cause and develop

action to prevent recurrence. Licensee

actions will be taken commensurate

with the established priorities and

processes of the licensee’s corrective

action program. The NRC inspection

program will provide an assessment of

the effectiveness of the corrective action

program. In addition to documentation

in inspection reports, violations will be

entered into the Plant Issues Matrix

(PIM). Because the NRC will not

normally obtain a written response from

licensees describing actions taken to

restore compliance and prevent

recurrence of these violations, this

enforcement approach places greater

NRC reliance on licensee corrective

action programs. Any one of the

following circumstances will result in

consideration of an NOV requiring a

formal written response from a licensee.

a. The licensee failed to restore

compliance within a reasonable time

after a violation was identified.

b. The licensee did not place the

violation into a corrective action

program to address recurrence.

c. The violation is repetitive 10 as a

result of inadequate corrective action,

and was identified by the NRC.

Note: This exception does not apply to

violations associated with green SDP

findings.

d. The violation was willful.

Notwithstanding willfulness, an NCV

may still be appropriate if:

(1) The licensee identified the

violation and the information

concerning the violation, if not required

to be reported, was promptly provided

to appropriate NRC personnel, such as

a resident inspector or regional branch

chief;

(2) The violation involved the acts of

a low-level individual (and not a

licensee official as defined in Section

IV.A);

(3) The violation appears to be the

isolated action of the employee without

management involvement and the

violation was not caused by lack of

management oversight as evidenced by

either a history of isolated willful

violations or a lack of adequate audits

or supervision of employees; and

(4) Significant remedial action

commensurate with the circumstances

was taken by the licensee such that it

demonstrated the seriousness of the

violation to other employees and

contractors, thereby creating a deterrent

effect within the licensee’s organization.

The approval of the Director, Office of

Enforcement, with consultation with the

Deputy Executive Director as warranted,

is required for dispositioning willful

violations as NCVs.

2.–7. [Reserved]

8. All Other Licensees

Severity Level IV violations that are

dispositioned as NCVs will be described

in inspection reports (or inspection

records for some materials licensees)

and will include a brief description of

the corrective action the licensee has

either taken or planned to take. Any one

of the following circumstances will

result in consideration of an NOV

requiring a formal written response from

a licensee.

a. The licensee failed to identify the

violation; 11

b. The licensee did not correct or

commit to correct the violation within a

reasonable time by specific corrective

action committed to by the end of the

inspection, including immediate

corrective action and comprehensive

corrective action to prevent recurrence;

and

c. The violation is repetitive as a

result of inadequate corrective action;

d. The violation was willful.

Notwithstanding willfulness, an NCV

may still be appropriate if it meets the

criteria in Section VI.A.1.d.

The approval of the Director, Office of

Enforcement, with consultation with the

Deputy Executive Director as warranted,

is required for dispositioning willful

violations as NCVs.

B. Notice of Violation

A Notice of Violation is a written

notice setting forth one or more

violations of a legally binding

requirement. The Notice of Violation

normally requires the recipient to

provide a written statement describing

(1) the reasons for the violation or, if

contested, the basis for disputing the

violation; (2) corrective steps that have

been taken and the results achieved; (3)

corrective steps that will be taken to

prevent recurrence; and (4) the date

when full compliance will be achieved.

The NRC may waive all or portions of

a written response to the extent that

relevant information has already been

provided to the NRC in writing or

documented in an NRC inspection

report or inspection record. The NRC

may require responses to Notices of

Violation to be under oath. Normally,

responses under oath will be required

only in connection with Severity Level

I, II, or III violations; violations

associated with findings that the SDP

evaluates as having low to moderate, or

greater safety significance (i.e., white,

yellow, or red); or orders.

Issuance of a Notice of Violation is

normally the only enforcement action

taken for Severity Level I, II, and III

violations, except in cases where the

criteria for issuance of civil penalties

and orders, as set forth in Sections VI.C

and VI.D, respectively, are met.

C. Civil Penalty

A civil penalty is a monetary penalty

that may be imposed for violation of (1)

certain specified licensing provisions of

the Atomic Energy Act or

supplementary NRC rules or orders; (2)

any requirement for which a license

may be revoked; or (3) reporting

requirements under section 206 of the

Energy Reorganization Act. Civil

penalties are designed to deter future

violations both by the involved licensee

25378 Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices

and other licensees conducting similar

activities. Civil penalties also emphasize

the need for licensees to identify

violations and take prompt

comprehensive corrective action.

Civil penalties are normally assessed

for Severity Level I and II violations and

knowing and conscious violations of the

reporting requirements of section 206 of

the Energy Reorganization Act. Civil

penalties are considered for Severity

Level III violations.

Civil penalties are also considered for

violations associated with inspection

findings evaluated through the Reactor

Oversight Process’s SDP that involved

actual consequences, such as an

overexposure to the public or plant

personnel above regulatory limits,

failure to make the required

notifications that impact the ability of

Federal, State and local agencies to

respond to an actual emergency

preparedness event (site area or general

emergency), transportation event, or a

substantial release of radioactive

material. (Civil penalties are not

proposed for violations associated with

low to moderate, or greater safety

significant findings absent actual

consequences.)

Civil penalties are used to encourage

prompt identification and prompt and

comprehensive correction of violations,

to emphasize compliance in a manner

that deters future violations, and to

serve to focus licensees’ attention on

significant violations.

Although management involvement,

direct or indirect, in a violation may

lead to an increase in the civil penalty,

the lack of management involvement

may not be used to mitigate a civil

penalty. Allowing mitigation in the

latter case could encourage the lack of

management involvement in licensed

activities and a decrease in protection of

the public health and safety.

1. Base Civil Penalty

The NRC imposes different levels of

penalties for different severity level

violations and different classes of

licensees, contractors, and other

persons. Tables 1A and 1B show the

base civil penalties for various reactor,

fuel cycle, and materials programs.

(Civil penalties issued to individuals are

determined on a case-by-case basis.) The

structure of these tables generally takes

into account the gravity of the violation

as a primary consideration and the

ability to pay as a secondary

consideration. Generally, operations

involving greater nuclear material

inventories and greater potential

consequences to the public and licensee

employees receive higher civil

penalties. Regarding the secondary

factor of ability of various classes of

licensees to pay the civil penalties, it is

not the NRC’s intention that the

economic impact of a civil penalty be so

severe that it puts a licensee out of

business (orders, rather than civil

penalties, are used when the intent is to

suspend or terminate licensed activities)

or adversely affects a licensee’s ability

to safely conduct licensed activities.

The deterrent effect of civil penalties is

best served when the amounts of the

penalties take into account a licensee’s

ability to pay. In determining the

amount of civil penalties for licensees

for whom the tables do not reflect the

ability to pay or the gravity of the

violation, the NRC will consider

necessary increases or decreases on a

case-by-case basis. Normally, if a

licensee can demonstrate financial

hardship, the NRC will consider

payments over time, including interest,

rather than reducing the amount of the

civil penalty. However, where a licensee

claims financial hardship, the licensee

will normally be required to address

why it has sufficient resources to safely

conduct licensed activities and pay

license and inspection fees.

TABLE 1A.—BASE CIVIL PENALTIES

Dollars

a. Power reactors and gaseous diffusion plants ................................ 110,000

b. Fuel fabricators authorized to

possess Category I or II quantities of SNM ............................... 55,000

c. Fuel fabricators, industrial processors,1 and independent spent

fuel and monitored retrievable

storage installations .................... 27,500

d. Test reactors, mills and uranium

conversion facilities, contractors,

waste disposal licensees, industrial radiographers, and other

large material users .................... 11,000

e. Research reactors, academic,

medical, or other small material

users2 .......................................... 5,500

1 Large firms engaged in manufacturing or

distribution of byproduct, source, or special

nuclear material.

2This applies to nonprofit institutions not

otherwise categorized in this table, mobile nuclear services, nuclear pharmacies, and physician offices.

TABLE 1B.—BASE CIVIL PENALTIES

Severity level

Base civil penalty

amount

(percent of amount

listed in Table 1A)

I ................................. 100

II ................................ 80

III ............................... 50

2. Civil Penalty Assessment

In an effort to (1) emphasize the

importance of adherence to

requirements and (2) reinforce prompt

self-identification of problems and root

causes and prompt and comprehensive

correction of violations, the NRC

reviews each proposed civil penalty on

its own merits and, after considering all

relevant circumstances, may adjust the

base civil penalties shown in Table 1A

and 1B for Severity Level I, II, and III

violations as described below.

The civil penalty assessment process

considers four decisional points: (a)

whether the licensee has had any

previous escalated enforcement action

(regardless of the activity area) during

the past 2 years or past 2 inspections,

whichever is longer; (b) whether the

licensee should be given credit for

actions related to identification; (c)

whether the licensee’s corrective actions

are prompt and comprehensive; and (d)

whether, in view of all the

circumstances, the matter in question

requires the exercise of discretion.

Although each of these decisional

points may have several associated

considerations for any given case, the

outcome of the assessment process for

each violation or problem, absent the

exercise of discretion, is limited to one

of the following three results: no civil

penalty, a base civil penalty, or a base

civil penalty escalated by 100 percent.

The flow chart presented below is a

graphic representation of the civil

penalty assessment process.

Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices 25379

12An ‘‘event,’’ as used here, means (1) an event

characterized by an active adverse impact on

equipment or personnel, readily obvious by human

observation or instrumentation, or (2) a radiological

impact on personnel or the environment in excess

of regulatory limits, such as an overexposure, a

release of radioactive material above NRC limits, or

a loss of radioactive material. For example, an

equipment failure discovered through a spill of

liquid, a loud noise, the failure to have a system

respond properly, or an annunciator alarm would

be considered an event; a system discovered to be

inoperable through a document review would not.

Similarly, if a licensee discovered, through

quarterly dosimetry readings, that employees had

been inadequately monitored for radiation, the

issue would normally be considered licenseeidentified; however, if the same dosimetry readings

disclosed an overexposure, the issue would be

considered an event.

a. Initial Escalated Action

When the NRC determines that a nonwillful Severity Level III violation or

problem has occurred, and the licensee

has not had any previous escalated

actions (regardless of the activity area)

during the past 2 years or 2 inspections,

whichever is longer, the NRC will

consider whether the licensee’s

corrective action for the present

violation or problem is reasonably

prompt and comprehensive (see the

discussion under Section VI.C.2.c,

below). Using 2 years as the basis for

assessment is expected to cover most

situations, but considering a slightly

longer or shorter period might be

warranted based on the circumstances

of a particular case. The starting point

of this period should be considered the

date when the licensee was put on

notice of the need to take corrective

action. For a licensee-identified

violation or an event, this would be

when the licensee is aware that a

problem or violation exists requiring

corrective action. For an NRC-identified

violation, the starting point would be

when the NRC puts the licensee on

notice, which could be during the

inspection, at the inspection exit

meeting, or as part of post-inspection

communication.

If the corrective action is judged to be

prompt and comprehensive, a Notice of

Violation normally should be issued

with no associated civil penalty. If the

corrective action is judged to be less

than prompt and comprehensive, the

Notice of Violation normally should be

issued with a base civil penalty.

b. Credit for Actions Related to

Identification

(1) If a Severity Level I or II violation

or a willful Severity Level III violation

has occurred—or if, during the past 2

years or 2 inspections, whichever is

longer, the licensee has been issued at

least one other escalated action—the

civil penalty assessment should

normally consider the factor of

identification in addition to corrective

action (see the discussion under Section

VI.C.2.c, below). In these circumstances,

the NRC should consider whether the

licensee should be given credit for

actions related to identification.

In each case, the decision should be

focused on identification of the problem

requiring corrective action. In other

words, although giving credit for

Identification and Corrective Action

should be separate decisions, the

concept of Identification presumes that

the identifier recognizes the existence of

a problem, and understands that

corrective action is needed. The

decision on Identification requires

considering all the circumstances of

identification including:

(i) Whether the problem requiring

corrective action was NRC-identified,

licensee-identified, or revealed through

an event 12

(ii) Whether prior opportunities

existed to identify the problem requiring

corrective action, and if so, the age and

number of those opportunities;

(iii) Whether the problem was

revealed as the result of a licensee selfmonitoring effort, such as conducting an

audit, a test, a surveillance, a design

review, or troubleshooting;

(iv) For a problem revealed through

an event, the ease of discovery, and the

degree of licensee initiative in

identifying the root cause of the

problem and any associated violations;

(v) For NRC-identified issues, whether

the licensee would likely have

identified the issue in the same timeperiod if the NRC had not been

involved;

(vi) For NRC-identified issues,

whether the licensee should have

identified the issue (and taken action)

earlier; and

(vii) For cases in which the NRC

identifies the overall problem requiring

corrective action (e.g., a programmatic

issue), the degree of licensee initiative

or lack of initiative in identifying the

problem or problems requiring

corrective action.

(2) Although some cases may consider

all of the above factors, the importance

of each factor will vary based on the

type of case as discussed in the

following general guidance:

(i) Licensee-Identified. When a

problem requiring corrective action is

licensee-identified (i.e., identified

before the problem has resulted in an

event), the NRC should normally give

the licensee credit for actions related to

identification, regardless of whether

prior opportunities existed to identify

the problem.

(ii) Identified Through an Event.

When a problem requiring corrective

action is identified through an event,

the decision on whether to give the

licensee credit for actions related to

identification normally should consider

the ease of discovery, whether the event

occurred as the result of a licensee selfmonitoring effort (i.e., whether the

licensee was ‘‘looking for the problem’’),

the degree of licensee initiative in

identifying the problem or problems

requiring corrective action, and whether

prior opportunities existed to identify

the problem.

Any of these considerations may be

overriding if particularly noteworthy or

particularly egregious. For example, if

the event occurred as the result of

25380 Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices

conducting a surveillance or similar

self-monitoring effort (i.e., the licensee

was looking for the problem), the

licensee should normally be given credit

for identification. Even if the problem

was easily discovered (e.g., revealed by

a large spill of liquid), the NRC may

choose to give credit because

noteworthy licensee effort was exerted

in ferreting out the root cause and

associated violations, or simply because

no prior opportunities (e.g., procedural

cautions, post-maintenance testing,

quality control failures, readily

observable parameter trends, or repeated

or locked-in annunciator warnings)

existed to identify the problem.

(iii) NRC-Identified. When a problem

requiring corrective action is NRCidentified, the decision on whether to

give the licensee credit for actions

related to Identification should

normally be based on an additional

question: should the licensee have

reasonably identified the problem (and

taken action) earlier?

In most cases, this reasoning may be

based simply on the ease of the NRC

inspector’s discovery (e.g., conducting a

walkdown, observing in the control

room, performing a confirmatory NRC

radiation survey, hearing a cavitating

pump, or finding a valve obviously out

of position). In some cases, the

licensee’s missed opportunities to

identify the problem might include a

similar previous violation, NRC or

industry notices, internal audits, or

readily observable trends.

If the NRC identifies the violation but

concludes that, under the

circumstances, the licensee’s actions

related to Identification were not

unreasonable, the matter would be

treated as licensee-identified for

purposes of assessing the civil penalty.

In such cases, the question of

Identification credit shifts to whether

the licensee should be penalized for

NRC’s identification of the problem.

(iv) Mixed Identification. For ‘‘mixed’’

identification situations (i.e., where

multiple violations exist, some NRCidentified, some licensee-identified, or

where the NRC prompted the licensee to

take action that resulted in the

identification of the violation), the

NRC’s evaluation should normally

determine whether the licensee could

reasonably have been expected to

identify the violation in the NRC’s

absence. This determination should

consider, among other things, the timing

of the NRC’s discovery, the information

available to the licensee that caused the

NRC concern, the specificity of the

NRC’s concern, the scope of the

licensee’s efforts, the level of licensee

resources given to the investigation, and

whether the NRC’s path of analysis had

been dismissed or was being pursued in

parallel by the licensee.

In some cases, the licensee may have

addressed the isolated symptoms of

each violation (and may have identified

the violations), but failed to recognize

the common root cause and taken the

necessary comprehensive action. Where

this is true, the decision on whether to

give licensee credit for actions related to

Identification should focus on

identification of the problem requiring

corrective action (e.g., the programmatic

breakdown). As such, depending on the

chronology of the various violations, the

earliest of the individual violations

might be considered missed

opportunities for the licensee to have

identified the larger problem.

(v) Missed Opportunities to Identify.

Missed opportunities include prior

notifications or missed opportunities to

identify or prevent violations such as (1)

through normal surveillances, audits, or

quality assurance (QA) activities; (2)

through prior notice, i.e., specific NRC

or industry notification; or (3) through

other reasonable indication of a

potential problem or violation, such as

observations of employees and

contractors, and failure to take effective

corrective steps. It may include findings

of the NRC, the licensee, or industry

made at other facilities operated by the

licensee where it is reasonable to expect

the licensee to take action to identify or

prevent similar problems at the facility

subject to the enforcement action at

issue. In assessing this factor,

consideration will be given to, among

other things, the opportunities available

to discover the violation, the ease of

discovery, the similarity between the

violation and the notification, the

period of time between when the

violation occurred and when the

notification was issued, the action taken

(or planned) by the licensee in response

to the notification, and the level of

management review that the notification

received (or should have received).

The evaluation of missed

opportunities should normally depend

on whether the information available to

the licensee should reasonably have

caused action that would have

prevented the violation. Missed

opportunities is normally not applied

where the licensee appropriately

reviewed the opportunity for

application to its activities and

reasonable action was either taken or

planned to be taken within a reasonable

time.

In some situations the missed

opportunity is a violation in itself. In

these cases, unless the missed

opportunity is a Severity Level III

violation in itself, the missed

opportunity violation may be grouped

with the other violations into a single

Severity Level III ‘‘problem.’’ However,

if the missed opportunity is the only

violation, then it should not normally be

counted twice (i.e., both as the violation

and as a missed opportunity—’’double

counting’’) unless the number of

opportunities missed was particularly

significant.

The timing of the missed opportunity

should also be considered. While a rigid

time-frame is unnecessary, a 2-year

period should generally be considered

for consistency in implementation, as

the period reflecting relatively current

performance.

(3) When the NRC determines that the

licensee should receive credit for

actions related to Identification, the

civil penalty assessment should

normally result in either no civil

penalty or a base civil penalty, based on

whether Corrective Action is judged to

be reasonably prompt and

comprehensive. When the licensee is

not given credit for actions related to

Identification, the civil penalty

assessment should normally result in a

Notice of Violation with either a base

civil penalty or a base civil penalty

escalated by 100 percent, depending on

the quality of Corrective Action, because

the licensee’s performance is clearly not

acceptable.

c. Credit for Prompt and Comprehensive

Corrective Action

The purpose of the Corrective Action

factor is to encourage licensees to (1)

take the immediate actions necessary

upon discovery of a violation that will

restore safety and compliance with the

license, regulation(s), or other

requirement(s); and (2) develop and

implement (in a timely manner) the

lasting actions that will not only prevent

recurrence of the violation at issue, but

will be appropriately comprehensive,

given the significance and complexity of

the violation, to prevent occurrence of

violations with similar root causes.

Regardless of other circumstances

(e.g., past enforcement history,

identification), the licensee’s corrective

actions should always be evaluated as

part of the civil penalty assessment

process. As a reflection of the

importance given to this factor, an NRC

judgment that the licensee’s corrective

action has not been prompt and

comprehensive will always result in

issuing at least a base civil penalty.

In assessing this factor, consideration

will be given to the timeliness of the

corrective action (including the

promptness in developing the schedule

for long term corrective action), the

Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices 25381

adequacy of the licensee’s root cause

analysis for the violation, and, given the

significance and complexity of the

issue, the comprehensiveness of the

corrective action (i.e., whether the

action is focused narrowly to the

specific violation or broadly to the

general area of concern). Even in cases

when the NRC, at the time of the

enforcement conference, identifies

additional peripheral or minor

corrective action still to be taken, the

licensee may be given credit in this area,

as long as the licensee’s actions

addressed the underlying root cause and

are considered sufficient to prevent

recurrence of the violation and similar

violations.

Normally, the judgment of the

adequacy of corrective actions will

hinge on whether the NRC had to take

action to focus the licensee’s evaluative

and corrective process in order to obtain

comprehensive corrective action. This

will normally be judged at the time of

the predecisional enforcement

conference (e.g., by outlining

substantive additional areas where

corrective action is needed). Earlier

informal discussions between the

licensee and NRC inspectors or

management may result in improved

corrective action, but should not

normally be a basis to deny credit for

Corrective Action. For cases in which

the licensee does not get credit for

actions related to Identification because

the NRC identified the problem, the

assessment of the licensee’s corrective

action should begin from the time when

the NRC put the licensee on notice of

the problem. Notwithstanding eventual

good comprehensive corrective action, if

immediate corrective action was not

taken to restore safety and compliance

once the violation was identified,

corrective action would not be

considered prompt and comprehensive.

Corrective action for violations

involving discrimination should

normally only be considered

comprehensive if the licensee takes

prompt, comprehensive corrective

action that (1) addresses the broader

environment for raising safety concerns

in the workplace, and (2) provides a

remedy for the particular discrimination

at issue.

In response to violations of 10 CFR

50.59, corrective action should normally

be considered prompt and

comprehensive only if the licensee —

(i) Makes a prompt decision on

operability; and either

(ii) Makes a prompt evaluation under

10 CFR 50.59 if the licensee intends to

maintain the facility or procedure in the

as found condition; or

(iii) Promptly initiates corrective

action consistent with Criterion XVI of

10 CFR 50, Appendix B, if it intends to

restore the facility or procedure to the

FSAR description.

d. Exercise of Discretion

As provided in Section VII, ‘‘Exercise

of Discretion,’’ discretion may be

exercised by either escalating or

mitigating the amount of the civil

penalty determined after applying the

civil penalty adjustment factors to

ensure that the proposed civil penalty

reflects all relevant circumstances of the

particular case. However, in no instance

will a civil penalty for any one violation

exceed $110,000 per day.

D. Orders

An order is a written NRC directive to

modify, suspend, or revoke a license; to

cease and desist from a given practice or

activity; or to take such other action as

may be proper (see 10 CFR 2.202).

Orders may also be issued in lieu of, or

in addition to, civil penalties, as

appropriate for Severity Level I, II, or III

violations. Orders may be issued as

follows:

1. License Modification orders are

issued when some change in licensee

equipment, procedures, personnel, or

management controls is necessary.

2. Suspension Orders may be used:

(a) To remove a threat to the public

health and safety, common defense and

security, or the environment;

(b) To stop facility construction when,

(i) Further work could preclude or

significantly hinder the identification or

correction of an improperly constructed

safety-related system or component; or

(ii) The licensee’s quality assurance

program implementation is not adequate

to provide confidence that construction

activities are being properly carried out;

(c) When the licensee has not

responded adequately to other

enforcement action;

(d) When the licensee interferes with

the conduct of an inspection or

investigation; or

(e) For any reason not mentioned

above for which license revocation is

legally authorized.

Suspensions may apply to all or part

of the licensed activity. Ordinarily, a

licensed activity is not suspended (nor

is a suspension prolonged) for failure to

comply with requirements where such

failure is not willful and adequate

corrective action has been taken.

3. Revocation Orders may be used:

(a) When a licensee is unable or

unwilling to comply with NRC

requirements;

(b) When a licensee refuses to correct

a violation;

(c) When licensee does not respond to

a Notice of Violation where a response

was required;

(d) When a licensee refuses to pay an

applicable fee under the Commission’s

regulations; or

(e) For any other reason for which

revocation is authorized under section

186 of the Atomic Energy Act (e.g., any

condition which would warrant refusal

of a license on an original application).

4. Cease and Desist Orders may be

used to stop an unauthorized activity

that has continued after notification by

the NRC that the activity is

unauthorized.

5. Orders to non-licensees, including

contractors and subcontractors, holders

of NRC approvals, e.g., certificates of

compliance, early site permits, standard

design certificates, or applicants for any

of them, and to employees of any of the

foregoing, are used when the NRC has

identified deliberate misconduct that

may cause a licensee to be in violation

of an NRC requirement or where

incomplete or inaccurate information is

deliberately submitted or where the

NRC loses its reasonable assurance that

the licensee will meet NRC

requirements with that person involved

in licensed activities.

Unless a separate response is

warranted under 10 CFR 2.201, a Notice

of Violation need not be issued where

an order is based on violations

described in the order. The violations

described in an order need not be

categorized by severity level.

Orders are made effective

immediately, without prior opportunity

for hearing, whenever it is determined

that the public health, interest, or safety

so requires, or when the order is

responding to a violation involving

willfulness. Otherwise, a prior

opportunity for a hearing on the order

is afforded. For cases in which the NRC

believes a basis could reasonably exist

for not taking the action as proposed,

the licensee will ordinarily be afforded

an opportunity to show why the order

should not be issued in the proposed

manner by way of a Demand for

Information. (See 10 CFR 2.204)

E. Related Administrative Actions

In addition to NCVs, NOVs, civil

penalties, and orders, the NRC also uses

administrative actions, such as Notices

of Deviation, Notices of

Nonconformance, Confirmatory Action

Letters, Letters of Reprimand, and

Demands for Information to supplement

its enforcement program. The NRC

expects licensees and contractors to

adhere to any obligations and

commitments resulting from these

actions and will not hesitate to issue

25382 Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices

13The mitigation discretion described in Sections

VII.B.2—VII.B.6 does not normally apply to

violations associated with issues evaluated by the

SDP. The Reactor Oversight Process will use the

Agency Action Matrix to determine the agency

response to performance issues. The Agency Action

Matrix has provisions to consider extenuating

circumstances that were previously addressed

through enforcement mitigation.

appropriate orders to ensure that these

obligations and commitments are met.

1. Notices of Deviation are written

notices describing a licensee’s failure to

satisfy a commitment where the

commitment involved has not been

made a legally binding requirement. A

Notice of Deviation requests that a

licensee provide a written explanation

or statement describing corrective steps

taken (or planned), the results achieved,

and the date when corrective action will

be completed.

2. Notices of Nonconformance are

written notices describing contractors’

failures to meet commitments which

have not been made legally binding

requirements by NRC. An example is a

commitment made in a procurement

contract with a licensee as required by

10 CFR Part 50, Appendix B. Notices of

Nonconformances request that nonlicensees provide written explanations

or statements describing corrective steps

(taken or planned), the results achieved,

the dates when corrective actions will

be completed, and measures taken to

preclude recurrence.

3. Confirmatory Action Letters are

letters confirming a licensee’s or

contractor’s agreement to take certain

actions to remove significant concerns

about health and safety, safeguards, or

the environment.

4. Letters of Reprimand are letters

addressed to individuals subject to

Commission jurisdiction identifying a

significant deficiency in their

performance of licensed activities.

5. Demands for Information are

demands for information from licensees

or other persons for the purpose of

enabling the NRC to determine whether

an order or other enforcement action

should be issued.

VII. Exercise of Discretion

Notwithstanding the normal guidance

contained in this policy, as provided in

Section III, ‘‘Responsibilities,’’ the NRC

may choose to exercise discretion and

either escalate or mitigate enforcement

sanctions within the Commission’s

statutory authority to ensure that the

resulting enforcement action takes into

consideration all of the relevant

circumstances of the particular case.

A. Escalation of Enforcement Sanctions

The NRC considers violations

categorized at Severity Level I, II, or III

to be of significant regulatory concern.

The NRC also considers violations

associated with findings that the Reactor

Oversight Process’s Significance

Determination Process evaluates as

having low to moderate, or greater safety

significance (i.e., white, yellow, or red)

to be of significant regulatory concern.

If the application of the normal

guidance in this policy does not result

in an appropriate sanction, with the

approval of the Deputy Executive

Director and consultation with the EDO

and Commission, as warranted, the NRC

may apply its full enforcement authority

where the action is warranted. NRC

action may include (1) escalating civil

penalties; (2) issuing appropriate orders;

and (3) assessing civil penalties for

continuing violations on a per day basis,

up to the statutory limit of $110,000 per

violation, per day.

1. Civil Penalties

Notwithstanding the outcome of the

normal civil penalty assessment process

addressed in Section VI.C, the NRC may

exercise discretion by either proposing

a civil penalty where application of the

factors would otherwise result in zero

penalty or by escalating the amount of

the resulting civil penalty (i.e., base or

twice the base civil penalty) to ensure

that the proposed civil penalty reflects

the significance of the circumstances.

The Commission will be notified if the

deviation in the amount of the civil

penalty proposed under this discretion

from the amount of the civil penalty

assessed under the normal process is

more than two times the base civil

penalty shown in Tables 1A and 1B.

Examples when this discretion should

be considered include, but are not

limited to the following:

(a) Problems categorized at Severity

Level I or II;

(b) Overexposures, or releases of

radiological material in excess of NRC

requirements;

(c) Situations involving particularly

poor licensee performance, or involving

willfulness;

(d) Situations when the licensee’s

previous enforcement history has been

particularly poor, or when the current

violation is directly repetitive of an

earlier violation;

(e) Situations when the violation

results in a substantial increase in risk,

including cases in which the duration of

the violation has contributed to the

substantial increase;

(f) Situations when the licensee made

a conscious decision to be in

noncompliance in order to obtain an

economic benefit;

(g) Cases involving the loss of a

source. In addition, unless the licensee

self-identifies and reports the loss to the

NRC, these cases should normally result

in a civil penalty in an amount at least

in the order of the cost of an authorized

disposal of the material or of the transfer

of the material to an authorized

recipient; or (h) Severity Level II or III

violations associated with departures

from the Final Safety Analysis Report

identified after March 30, 2000, for risksignificant items as defined by the

licensee’s maintenance rule program

and March 30, 2001, for all other issues.

Such a violation or problem would

consider the number and nature of the

violations, the severity of the violations,

whether the violations were continuing,

and who identified the violations (and

if the licensee identified the violation,

whether exercise of Section VII.B.3

enforcement discretion is warranted.)

2. Orders

The NRC may, where necessary or

desirable, issues orders in conjunction

with or in lieu of civil penalties to

achieve or formalize corrective actions

and to deter further recurrence of

serious violations.

3. Daily Civil Penalties

In order to recognize the added

significance for those cases where a very

strong message is warranted for a

significant violation that continues for

more than one day, the NRC may

exercise discretion and assess a separate

violation and attendant civil penalty up

to the statutory limit of $110,000 for

each day the violation continues. The

NRC may exercise this discretion if a

licensee was aware of or clearly should

have been aware of a violation, or if the

licensee had an opportunity to identify

and correct the violation but failed to do

so.

B. Mitigation of Enforcement Sanctions

The NRC may exercise discretion and

refrain from issuing a civil penalty and/

or a Notice of Violation after

considering the general principles of

this statement of policy and the

surrounding circumstances.13 The

approval of the Director, Office of

Enforcement, in consultation with the

Deputy Executive Director, as

warranted, is required for exercising

discretion of the type described in

Sections VII.B.2 through VII.B.6. The

circumstances under which mitigation

discretion should be considered

include, but are not limited to the

following:

Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices 25383

1. [Reserved]

2. Violations Identified During Extended

Shutdowns or Work Stoppages

The NRC may refrain from issuing a

Notice of Violation or a proposed civil

penalty for a Severity Level II, III, or IV

violation that is identified after (i) the

NRC has taken significant enforcement

action based upon a major safety event

contributing to an extended shutdown

of an operating reactor or a material

licensee (or a work stoppage at a

construction site), or (ii) the licensee

enters an extended shutdown or work

stoppage related to generally poor

performance over a long period of time,

provided that the violation is

documented in an inspection report (or

inspection records for some material

cases) and that it meets all of the

following criteria:

(a) It was either licensee-identified as

a result of a comprehensive program for

problem identification and correction

that was developed in response to the

shutdown or identified as a result of an

employee allegation to the licensee; (If

the NRC identifies the violation and all

of the other criteria are met, the NRC

should determine whether enforcement

action is necessary to achieve remedial

action, or if discretion may still be

appropriate.)

(b) It is based upon activities of the

licensee prior to the events leading to

the shutdown;

(c) It would not be categorized at

Severity Level I;

(d) It was not willful; and

(e) The licensee’s decision to restart

the plant requires NRC concurrence.

3. Violations Involving Old Design

Issues

The NRC may refrain from proposing

a civil penalty for a Severity Level II or

III violation involving a past problem,

such as in engineering, design, or

installation, if the violation is

documented in an inspection report (or

inspection records for some material

cases) that includes a description of the

corrective action and that it meets all of

the following criteria:

(a) It was a licensee-identified as a

result of its voluntary initiative;

(b) It was or will be corrected,

including immediate corrective action

and long term comprehensive corrective

action to prevent recurrence, within a

reasonable time following identification

(this action should involve expanding

the initiative, as necessary, to identify

other failures caused by similar root

causes); and

(c) It was not likely to be identified

(after the violation occurred) by routine

licensee efforts such as normal

surveillance or quality assurance (QA)

activities.

In addition, the NRC may refrain from

issuing a Notice of Violation for a

Severity Level II, III, or IV violation that

meets the above criteria provided the

violation was caused by conduct that is

not reasonably linked to present

performance (normally, violations that

are at least 3 years old or violations

occurring during plant construction)

and there had not been prior notice so

that the licensee should have reasonably

identified the violation earlier. This

exercise of discretion is to place a

premium on licensees initiating efforts

to identify and correct subtle violations

that are not likely to be identified by

routine efforts before degraded safety

systems are called upon to work.

Section VII.B.3 discretion would not

normally be applied to departures from

the FSAR if:

(a) The NRC identifies the violation,

unless it was likely in the NRC staff’s

view that the licensee would have

identified the violation in light of the

defined scope, thoroughness, and

schedule of the licensee’s initiative

provided the schedule provides for

completion of the licensee’s initiative by

March 30, 2000, for risk-significant

items as defined by the licensee’s

maintenance rule program and by

March 30, 2001, for all other issues;

(b) The licensee identifies the

violation as a result of an event or

surveillance or other required testing

where required corrective action

identifies the FSAR issue;

(c) The licensee identifies the

violation but had prior opportunities to

do so (was aware of the departure from

the FSAR) and failed to correct it earlier;

(d) There is willfulness associated

with the violation;

(e) The licensee fails to make a report

required by the identification of the

departure from the FSAR; or

(f) The licensee either fails to take

comprehensive corrective action or fails

to appropriately expand the corrective

action program. The corrective action

should be broad with a defined scope

and schedule.

4. Violations Identified Due to Previous

Enforcement Action

The NRC may refrain from issuing a

Notice of Violation or a proposed civil

penalty for a Severity Level II, III, or IV

violation that is identified after the NRC

has taken enforcement action, if the

violation is documented in an

inspection report (or inspection records

for some material cases) that includes a

description of the corrective action and

that it meets all of the following criteria:

(a) It was licensee-identified as part of

the corrective action for the previous

enforcement action;

(b) It has the same or similar root

cause as the violation for which

enforcement action was issued;

(c) It does not substantially change the

safety significance or the character of

the regulatory concern arising out of the

initial violation; and

(d) It was or will be corrected,

including immediate corrective action

and long term comprehensive corrective

action to prevent recurrence, within a

reasonable time following identification.

(e) It would not be categorized at

Severity Level I;

5. Violations Involving Certain

Discrimination Issues

Enforcement discretion may be

exercised for discrimination cases when

a licensee who, without the need for

government intervention, identifies an

issue of discrimination and takes

prompt, comprehensive, and effective

corrective action to address both the

particular situation and the overall work

environment for raising safety concerns.

Similarly, enforcement may not be

warranted where a complaint is filed

with the Department of Labor (DOL)

under Section 211 of the Energy

Reorganization Act of 1974, as

amended, but the licensee settles the

matter before the DOL makes an initial

finding of discrimination and addresses

the overall work environment.

Alternatively, if a finding of

discrimination is made, the licensee

may choose to settle the case before the

evidentiary hearing begins. In such

cases, the NRC may exercise its

discretion not to take enforcement

action when the licensee has addressed

the overall work environment for raising

safety concerns and has publicized that

a complaint of discrimination for

engaging in protected activity was made

to the DOL, that the matter was settled

to the satisfaction of the employee (the

terms of the specific settlement

agreement need not be posted), and that,

if the DOL Area Office found

discrimination, the licensee has taken

action to positively reemphasize that

discrimination will not be tolerated.

Similarly, the NRC may refrain from

taking enforcement action if a licensee

settles a matter promptly after a person

comes to the NRC without going to the

DOL. Such discretion would normally

not be exercised in cases in which the

licensee does not appropriately address

the overall work environment (e.g., by

using training, postings, revised policies

or procedures, any necessary

disciplinary action, etc., to

communicate its policy against

25384 Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices

discrimination) or in cases that involve:

allegations of discrimination as a result

of providing information directly to the

NRC, allegations of discrimination

caused by a manager above first-line

supervisor (consistent with current

Enforcement Policy classification of

Severity Level I or II violations),

allegations of discrimination where a

history of findings of discrimination (by

the DOL or the NRC) or settlements

suggests a programmatic rather than an

isolated discrimination problem, or

allegations of discrimination which

appear particularly blatant or egregious.

6. Violations Involving Special

Circumstances

Notwithstanding the outcome of the

normal enforcement process addressed

in Section VI.B or the normal civil

penalty assessment process addressed in

Section VI.C, the NRC may reduce or

refrain from issuing a civil penalty or a

Notice of Violation for a Severity Level

II, III, or IV violation based on the merits

of the case after considering the

guidance in this statement of policy and

such factors as the age of the violation,

the significance of the violation, the

clarity of the requirement, the

appropriateness of the requirement, the

overall sustained performance of the

licensee has been particularly good, and

other relevant circumstances, including

any that may have changed since the

violation. This discretion is expected to

be exercised only where application of

the normal guidance in the policy is

unwarranted. In addition, the NRC may

refrain from issuing enforcement action

for violations resulting from matters not

within a licensee’s control, such as

equipment failures that were not

avoidable by reasonable licensee quality

assurance measures or management

controls. Generally, however, licensees

are held responsible for the acts of their

employees and contractors.

Accordingly, this policy should not be

construed to excuse personnel or

contractor errors.

C. Notice of Enforcement Discretion for

Power Reactors and Gaseous Diffusion

Plants

On occasion, circumstances may arise

where a power reactor’s compliance

with a Technical Specification (TS)

Limiting Condition for Operation or

with other license conditions would

involve an unnecessary plant transient

or performance of testing, inspection, or

system realignment that is inappropriate

with the specific plant conditions, or

unnecessary delays in plant startup

without a corresponding health and

safety benefit. Similarly, for a gaseous

diffusion plant (GDP), circumstances

may arise where compliance with a

Technical Safety Requirement (TSR) or

technical specification or other

certificate condition would

unnecessarily call for a total plant

shutdown or, notwithstanding that a

safety, safeguards, or security feature

was degraded or inoperable, compliance

would unnecessarily place the plant in

a transient or condition where those

features could be required.

In these circumstances, the NRC staff

may choose not to enforce the

applicable TS, TSR, or other license or

certificate condition. This enforcement

discretion, designated as a Notice of

Enforcement Discretion (NOED), will

only be exercised if the NRC staff is

clearly satisfied that the action is

consistent with protecting the public

health and safety. The NRC staff may

also grant enforcement discretion in

cases involving severe weather or other

natural phenomena, based upon

balancing the public health and safety

or common defense and security of not

operating against the potential

radiological or other hazards associated

with continued operation, and a

determination that safety will not be

impacted unacceptably by exercising

this discretion. The Commission is to be

informed expeditiously following the

granting of an NOED in these situations.

A licensee or certificate holder seeking

the issuance of a NOED must provide a

written justification, or in circumstances

where good cause is shown, oral

justification followed as soon as

possible by written justification, that

documents the safety basis for the

request and provides whatever other

information necessary for the NRC staff

to make a decision on whether to issue

a NOED.

The appropriate Regional

Administrator, or his or her designee,

may issue a NOED where the

noncompliance is temporary and

nonrecurring when an amendment is

not practical. The Director, Office of

Nuclear Reactor Regulation or Office of

Nuclear Materials Safety and

Safeguards, as appropriate, or his or her

designee, may issue a NOED if the

expected noncompliance will occur

during the brief period of time it

requires the NRC staff to process an

emergency or exigent license

amendment under the provisions of 10

CFR 50.91(a)(5) or (6) or a certificate

amendment under 10 CFR 76.45. The

person exercising enforcement

discretion will document the decision.

For an operating reactor, this exercise

of enforcement discretion is intended to

minimize the potential safety

consequences of unnecessary plant

transients with the accompanying

operational risks and impacts or to

eliminate testing, inspection, or system

realignment which is inappropriate for

the particular plant conditions. For

plants in a shutdown condition,

exercising enforcement discretion is

intended to reduce shutdown risk by,

again, avoiding testing, inspection or

system realignment which is

inappropriate for the particular plant

conditions, in that, it does not provide

a safety benefit or may, in fact, be

detrimental to safety in the particular

plant condition. Exercising enforcement

discretion for plants attempting to

startup is less likely than exercising it

for an operating plant, as simply

delaying startup does not usually leave

the plant in a condition in which it

could experience undesirable transients.

In such cases, the Commission would

expect that discretion would be

exercised with respect to equipment or

systems only when it has at least

concluded that, notwithstanding the

conditions of the license: (1) The

equipment or system does not perform

a safety function in the mode in which

operation is to occur; (2) the safety

function performed by the equipment or

system is of only marginal safety

benefit, provided remaining in the

current mode increases the likelihood of

an unnecessary plant transient; or (3)

the TS or other license condition

requires a test, inspection, or system

realignment that is inappropriate for the

particular plant conditions, in that it

does not provide a safety benefit, or

may, in fact, be detrimental to safety in

the particular plant condition.

For GDPs, the exercise of enforcement

discretion would be used where

compliance with a certificate condition

would involve an unnecessary plant

shutdown or, notwithstanding that a

safety, safeguards, or security feature

was degraded or inoperable, compliance

would unnecessarily place the plant in

a transient or condition where those

features could be required. Such

regulatory flexibility is needed because

a total plant shutdown is not necessarily

the best response to a plant condition.

GDPs are designed to operate

continuously and have never been shut

down. Although portions can be shut

down for maintenance, the NRC staff

has been informed by the certificate

holder that restart from a total plant

shutdown may not be practical and the

staff agrees that the design of a GDP

does not make restart practical. Hence,

the decision to place either GDP in

plant-wide shutdown condition would

be made only after determining that

there is inadequate safety, safeguards, or

security and considering the total

Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices 25385

impact of the shutdown on safety, the

environment, safeguards, and security.

A NOED would not be used for

noncompliances with other than

certificate requirements, or for

situations where the certificate holder

cannot demonstrate adequate safety,

safeguards, or security.

The decision to exercise enforcement

discretion does not change the fact that

a violation will occur nor does it imply

that enforcement discretion is being

exercised for any violation that may

have led to the violation at issue. In

each case where the NRC staff has

chosen to issue a NOED, enforcement

action will normally be taken for the

root causes, to the extent violations

were involved, that led to the

noncompliance for which enforcement

discretion was used. The enforcement

action is intended to emphasize that

licensees and certificate holders should

not rely on the NRC’s authority to

exercise enforcement discretion as a

routine substitute for compliance or for

requesting a license or certificate

amendment.

Finally, it is expected that the NRC

staff will exercise enforcement

discretion in this area infrequently.

Although a plant must shut down,

refueling activities may be suspended,

or plant startup may be delayed, absent

the exercise of enforcement discretion,

the NRC staff is under no obligation to

take such a step merely because it has

been requested. The decision to forego

enforcement is discretionary. When

enforcement discretion is to be

exercised, it is to be exercised only if

the NRC staff is clearly satisfied that the

action is warranted from a health and

safety perspective.

VIII. Enforcement Actions Involving

Individuals

Enforcement actions involving

individuals, including licensed

operators, are significant personnel

actions, which will be closely controlled

and judiciously applied. An

enforcement action involving an

individual will normally be taken only

when the NRC is satisfied that the

individual fully understood, or should

have understood, his or her

responsibility; knew, or should have

known, the required actions; and

knowingly, or with careless disregard

(i.e., with more than mere negligence)

failed to take required actions which

have actual or potential safety

significance. Most transgressions of

individuals at the level of Severity Level

III or IV violations will be handled by

citing only the facility licensee.

More serious violations, including

those involving the integrity of an

individual (e.g., lying to the NRC)

concerning matters within the scope of

the individual’s responsibilities, will be

considered for enforcement action

against the individual as well as against

the facility licensee. However, action

against the individual will not be taken

if the improper action by the individual

was caused by management failures.

The following examples of situations

illustrate this concept:

• Inadvertent individual mistakes

resulting from inadequate training or

guidance provided by the facility

licensee.

• Inadvertently missing an

insignificant procedural requirement

when the action is routine, fairly

uncomplicated, and there is no unusual

circumstance indicating that the

procedures should be referred to and

followed step-by-step.

• Compliance with an express

direction of management, such as the

Shift Supervisor or Plant Manager,

resulted in a violation unless the

individual did not express his or her

concern or objection to the direction.

• Individual error directly resulting

from following the technical advice of

an expert unless the advise was clearly

unreasonable and the licensed

individual should have recognized it as

such.

• Violations resulting from

inadequate procedures unless the

individual used a faulty procedure

knowing it was faulty and had not

attempted to get the procedure

corrected.

Listed below are examples of

situations which could result in

enforcement actions involving

individuals, licensed or unlicensed. If

the actions described in these examples

are taken by a licensed operator or taken

deliberately by an unlicensed

individual, enforcement action may be

taken directly against the individual.

However, violations involving willful

conduct not amounting to deliberate

action by an unlicensed individual in

these situations may result in

enforcement action against a licensee

that may impact an individual. The

situations include, but are not limited

to, violations that involve:

• Willfully causing a licensee to be in

violation of NRC requirements.

• Willfully taking action that would

have caused a licensee to be in violation

of NRC requirements but the action did

not do so because it was detected and

corrective action was taken.

• Recognizing a violation of

procedural requirements and willfully

not taking corrective action.

• Willfully defeating alarms which

have safety significance.

• Unauthorized abandoning of reactor

controls.

• Dereliction of duty.

• Falsifying records required by NRC

regulations or by the facility license.

• Willfully providing, or causing a

licensee to provide, an NRC inspector or

investigator with inaccurate or

incomplete information on a matter

material to the NRC.

• Willfully withholding safety

significant information rather than

making such information known to

appropriate supervisory or technical

personnel in the licensee’s organization.

• Submitting false information and as

a result gaining unescorted access to a

nuclear power plant.

• Willfully providing false data to a

licensee by a contractor or other person

who provides test or other services,

when the data affects the licensee’s

compliance with 10 CFR Part 50,

Appendix B, or other regulatory

requirement.

• Willfully providing false

certification that components meet the

requirements of their intended use, such

as ASME Code.

• Willfully supplying, by contractors

of equipment for transportation of

radioactive material, casks that do not

comply with their certificates of

compliance.

• Willfully performing unauthorized

bypassing of required reactor or other

facility safety systems.

• Willfully taking actions that violate

Technical Specification Limiting

Conditions for Operation or other

license conditions (enforcement action

for a willful violation will not be taken

if that violation is the result of action

taken following the NRC’s decision to

forego enforcement of the Technical

Specification or other license condition

or if the operator meets the

requirements of 10 CFR 50.54(x), (i.e.,

unless the operator acted unreasonably

considering all the relevant

circumstances surrounding the

emergency.)

Normally, some enforcement action is

taken against a licensee for violations

caused by significant acts of wrongdoing

by its employees, contractors, or

contractors’ employees. In deciding

whether to issue an enforcement action

to an unlicensed person as well as to the

licensee, the NRC recognizes that

judgments will have to be made on a

case by case basis. In making these

decisions, the NRC will consider factors

such as the following:

1. The level of the individual within

the organization.

2. The individual’s training and

experience as well as knowledge of the

25386 Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices

14Except for individuals subject to civil penalties

under section 206 of the Energy Reorganization Act

of 1974, as amended, the NRC will not normally

impose a civil penalty against an individual.

However, section 234 of the Atomic Energy Act

(AEA) gives the Commission authority to impose

civil penalties on ‘‘any person.’’ ‘‘Person’’ is broadly

defined in Section 11s of the AEA to include

individuals, a variety of organizations, and any

representatives or agents. This gives the

Commission authority to impose civil penalties on

employees of licensees or on separate entities when

a violation of a requirement directly imposed on

them is committed.

potential consequences of the

wrongdoing.

3. The safety consequences of the

misconduct.

4. The benefit to the wrongdoer, e.g.,

personal or corporate gain.

5. The degree of supervision of the

individual, i.e., how closely is the

individual monitored or audited, and

the likelihood of detection (such as a

radiographer working independently in

the field as contrasted with a team

activity at a power plant).

6. The employer’s response, e.g.,

disciplinary action taken.

7. The attitude of the wrongdoer, e.g.,

admission of wrongdoing, acceptance of

responsibility.

8. The degree of management

responsibility or culpability.

9. Who identified the misconduct.

Any proposed enforcement action

involving individuals must be issued

with the concurrence of the Deputy

Executive Director. The particular

sanction to be used should be

determined on a case-by-case basis.14

Notices of Violation and Orders are

examples of enforcement actions that

may be appropriate against individuals.

The administrative action of a Letter of

Reprimand may also be considered. In

addition, the NRC may issue Demands

for Information to gather information to

enable it to determine whether an order

or other enforcement action should be

issued.

Orders to NRC-licensed reactor

operators may involve suspension for a

specified period, modification, or

revocation of their individual licenses.

Orders to unlicensed individuals might

include provisions that would:

• Prohibit involvement in NRC

licensed activities for a specified period

of time (normally the period of

suspension would not exceed 5 years) or

until certain conditions are satisfied,

e.g., completing specified training or

meeting certain qualifications.

• Require notification to the NRC

before resuming work in licensed

activities.

• Require the person to tell a

prospective employer or customer

engaged in licensed activities that the

person has been subject to an NRC

order.

In the case of a licensed operator’s

failure to meet applicable fitness-forduty requirements (10 CFR 55.53(j)), the

NRC may issue a Notice of Violation or

a civil penalty to the Part 55 licensee,

or an order to suspend, modify, or

revoke the Part 55 license. These actions

may be taken the first time a licensed

operator fails a drug or alcohol test, that

is, receives a confirmed positive test

that exceeds the cutoff levels of 10 CFR

Part 26 or the facility licensee’s cutoff

levels, if lower. However, normally only

a Notice of Violation will be issued for

the first confirmed positive test in the

absence of aggravating circumstances

such as errors in the performance of

licensed duties or evidence of prolonged

use. In addition, the NRC intends to

issue an order to suspend the Part 55

license for up to 3 years the second time

a licensed operator exceeds those cutoff

levels. In the event there are less than

3 years remaining in the term of the

individual’s license, the NRC may

consider not renewing the individual’s

license or not issuing a new license after

the three year period is completed. The

NRC intends to issue an order to revoke

the Part 55 license the third time a

licensed operator exceeds those cutoff

levels. A licensed operator or applicant

who refuses to participate in the drug

and alcohol testing programs

established by the facility licensee or

who is involved in the sale, use, or

possession of an illegal drug is also

subject to license suspension,

revocation, or denial.

In addition, the NRC may take

enforcement action against a licensee

that may impact an individual, where

the conduct of the individual places in

question the NRC’s reasonable

assurance that licensed activities will be

properly conducted. The NRC may take

enforcement action for reasons that

would warrant refusal to issue a license

on an original application. Accordingly,

appropriate enforcement actions may be

taken regarding matters that raise issues

of integrity, competence, fitness-forduty, or other matters that may not

necessarily be a violation of specific

Commission requirements.

In the case of an unlicensed person,

whether a firm or an individual, an

order modifying the facility license may

be issued to require (1) the removal of

the person from all licensed activities

for a specified period of time or

indefinitely, (2) prior notice to the NRC

before using the person in licensed

activities, or (3) the licensee to provide

notice of the issuance of such an order

to other persons involved in licensed

activities making reference inquiries. In

addition, orders to employers might

require retraining, additional oversight,

or independent verification of activities

performed by the person, if the person

is to be involved in licensed activities.

IX. Inaccurate and Incomplete

Information

A violation of the regulations

involving the submittal of incomplete

and/or inaccurate information, whether

or not considered a material false

statement, can result in the full range of

enforcement sanctions. The labeling of a

communication failure as a material

false statement will be made on a caseby-case basis and will be reserved for

egregious violations. Violations

involving inaccurate or incomplete

information or the failure to provide

significant information identified by a

licensee normally will be categorized

based on the guidance herein, in Section

IV, ‘‘Significance of Violations,’’ and in

Supplement VII.

The Commission recognizes that oral

information may in some situations be

inherently less reliable than written

submittals because of the absence of an

opportunity for reflection and

management review. However, the

Commission must be able to rely on oral

communications from licensee officials

concerning significant information.

Therefore, in determining whether to

take enforcement action for an oral

statement, consideration may be given

to factors such as (1) the degree of

knowledge that the communicator

should have had, regarding the matter,

in view of his or her position, training,

and experience; (2) the opportunity and

time available prior to the

communication to assure the accuracy

or completeness of the information; (3)

the degree of intent or negligence, if

any, involved; (4) the formality of the

communication; (5) the reasonableness

of NRC reliance on the information; (6)

the importance of the information

which was wrong or not provided; and

(7) the reasonableness of the

explanation for not providing complete

and accurate information.

Absent at least careless disregard, an

incomplete or inaccurate unsworn oral

statement normally will not be subject

to enforcement action unless it involves

significant information provided by a

licensee official. However, enforcement

action may be taken for an

unintentionally incomplete or

inaccurate oral statement provided to

the NRC by a licensee official or others

on behalf of a licensee, if a record was

made of the oral information and

provided to the licensee thereby

permitting an opportunity to correct the

oral information, such as if a transcript

Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices 25387

of the communication or meeting

summary containing the error was made

available to the licensee and was not

subsequently corrected in a timely

manner.

When a licensee has corrected

inaccurate or incomplete information,

the decision to issue a Notice of

Violation for the initial inaccurate or

incomplete information normally will

be dependent on the circumstances,

including the ease of detection of the

error, the timeliness of the correction,

whether the NRC or the licensee

identified the problem with the

communication, and whether the NRC

relied on the information prior to the

correction. Generally, if the matter was

promptly identified and corrected by

the licensee prior to reliance by the

NRC, or before the NRC raised a

question about the information, no

enforcement action will be taken for the

initial inaccurate or incomplete

information. On the other hand, if the

misinformation is identified after the

NRC relies on it, or after some question

is raised regarding the accuracy of the

information, then some enforcement

action normally will be taken even if it

is in fact corrected. However, if the

initial submittal was accurate when

made but later turns out to be erroneous

because of newly discovered

information or advance in technology, a

citation normally would not be

appropriate if, when the new

information became available or the

advancement in technology was made,

the initial submittal was corrected.

The failure to correct inaccurate or

incomplete information which the

licensee does not identify as significant

normally will not constitute a separate

violation. However, the circumstances

surrounding the failure to correct may

be considered relevant to the

determination of enforcement action for

the initial inaccurate or incomplete

statement. For example, an

unintentionally inaccurate or

incomplete submission may be treated

as a more severe matter if the licensee

later determines that the initial

submittal was in error and does not

correct it or if there were clear

opportunities to identify the error. If

information not corrected was

recognized by a licensee as significant,

a separate citation may be made for the

failure to provide significant

information. In any event, in serious

cases where the licensee’s actions in not

correcting or providing information

raise questions about its commitment to

safety or its fundamental

trustworthiness, the Commission may

exercise its authority to issue orders

modifying, suspending, or revoking the

license. The Commission recognizes

that enforcement determinations must

be made on a case-by-case basis, taking

into consideration the issues described

in this section.

X. Enforcement Action Against NonLicensees

The Commission’s enforcement policy

is also applicable to non-licensees,

including contractors and

subcontractors, holders of NRC

approvals, e.g., certificates of

compliance, early site permits, standard

design certificates, quality assurance

program approvals, or applicants for any

of them, and to employees of any of the

foregoing, who knowingly provide

components, equipment, or other goods

or services that relate to a licensee’s

activities subject to NRC regulation. The

prohibitions and sanctions for any of

these persons who engage in deliberate

misconduct or knowing submission of

incomplete or inaccurate information

are provided in the rule on deliberate

misconduct, e.g., 10 CFR 30.10 and 50.5.

Contractors who supply products or

services provided for use in nuclear

activities are subject to certain

requirements designed to ensure that

the products or services supplied that

could affect safety are of high quality.

Through procurement contracts with

licensees, suppliers may be required to

have quality assurance programs that

meet applicable requirements, e.g., 10

CFR Part 50, Appendix B, and 10 CFR

Part 71, Subpart H. Contractors

supplying certain products or services

to licensees are subject to the

requirements of 10 CFR Part 21

regarding reporting of defects in basic

components.

When inspections determine that

violations of NRC requirements have

occurred, or that contractors have failed

to fulfill contractual commitments (e.g.,

10 CFR Part 50, Appendix B) that could

adversely affect the quality of a safety

significant product or service,

enforcement action will be taken.

Notices of Violation and civil penalties

will be used, as appropriate, for licensee

failures to ensure that their contractors

have programs that meet applicable

requirements. Notices of Violation will

be issued for contractors who violate 10

CFR Part 21. Civil penalties will be

imposed against individual directors or

responsible officers of a contractor

organization who knowingly and

consciously fail to provide the notice

required by 10 CFR 21.21(d)(1). Notices

of Violation or orders will be used

against non-licensees who are subject to

the specific requirements of Part 72.

Notices of Nonconformance will be used

for contractors who fail to meet

commitments related to NRC activities

but are not in violation of specific

requirements.

XI. Referrals to the Department of

Justice

Alleged or suspected criminal

violations of the Atomic Energy Act

(and of other relevant Federal laws) are

referred to the Department of Justice

(DOJ) for investigation. Referral to the

DOJ does not preclude the NRC from

taking other enforcement action under

this policy. However, enforcement

actions will be coordinated with the

DOJ in accordance with the

Memorandum of Understanding

between the NRC and the DOJ, (53 FR

50317; December 14, 1988).

XII. Public Disclosure of Enforcement

Actions

Enforcement actions and licensees’

responses, in accordance with 10 CFR

2.790, are publicly available for

inspection. In addition, press releases

are generally issued for orders and civil

penalties and are issued at the same

time the order or proposed imposition

of the civil penalty is issued. In

addition, press releases are usually

issued when a proposed civil penalty is

withdrawn or substantially mitigated by

some amount. Press releases are not

normally issued for Notices of Violation

that are not accompanied by orders or

proposed civil penalties.

XIII. Reopening Closed Enforcement

Actions

If significant new information is

received or obtained by NRC which

indicates that an enforcement sanction

was incorrectly applied, consideration

may be given, dependent on the

circumstances, to reopening a closed

enforcement action to increase or

decrease the severity of a sanction or to

correct the record. Reopening decisions

will be made on a case-by-case basis, are

expected to occur rarely, and require the

specific approval of the Deputy

Executive Director.

Supplements—Violation Examples

This section provides examples of

violations in each of four severity levels

as guidance in determining the

appropriate severity level for violations

in each of eight activity areas (reactor

operations, Part 50 facility construction,

safeguards, health physics,

transportation, fuel cycle and materials

operations, miscellaneous matters, and

emergency preparedness).

Supplement I—Reactor Operations

This supplement provides examples

of violations in each of the four severity

25388 Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices

15The term ‘‘system’’ as used in these

supplements, includes administrative and

managerial control systems, as well as physical

systems.

16 ‘‘Intended safety function’’ means the total

safety function, and is not directed toward a loss

of redundancy. A loss of one subsystem does not

defeat the intended safety function as long as the

other subsystem is operable.

17The term ‘‘completed’’ as used in this

supplement means completion of construction

including review and acceptance by the

construction QA organization.

levels as guidance in determining the

appropriate severity level for violations

in the area of reactor operations.

A. Severity Level I—Violations Involving

for Example:

1. A Safety Limit, as defined in 10

CFR 50.36 and the Technical

Specifications being exceeded;

2. A system 15 designed to prevent or

mitigate a serious safety event not being

able to perform its intended safety

function 16 when actually called upon to

work;

3. An accidental criticality; or

4. A licensed operator at the controls

of a nuclear reactor, or a senior operator

directing licensed activities, involved in

procedural errors which result in, or

exacerbate the consequences of, an alert

or higher level emergency and who, as

a result of subsequent testing, receives

a confirmed positive test result for drugs

or alcohol.

B. Severity Level II—Violations

Involving for Example

1. A system designed to prevent or

mitigate serious safety events not being

able to perform its intended safety

function;

2. A licensed operator involved in the

use, sale, or possession of illegal drugs

or the consumption of alcoholic

beverages, within the protected area; or

3. A licensed operator at the control

of a nuclear reactor, or a senior operator

directing licensed activities, involved in

procedural errors and who, as a result

of subsequent testing, receives a

confirmed positive test result for drugs

or alcohol.

C. Severity Level III—Violations

Involving for Example

1. A significant failure to comply with

the Action Statement for a Technical

Specification Limiting Condition for

Operation where the appropriate action

was not taken within the required time,

such as:

(a) In a pressurized water reactor, in

the applicable modes, having one highpressure safety injection pump

inoperable for a period in excess of that

allowed by the action statement; or

(b) In a boiling water reactor, one

primary containment isolation valve

inoperable for a period in excess of that

allowed by the action statement.

2. A system designed to prevent or

mitigate a serious safety event not being

able to perform its intended function

under certain conditions (e.g., safety

system not operable unless offsite power

is available; materials or components

not environmentally qualified).

3. Inattentiveness to duty on the part

of licensed personnel;

4. Changes in reactor parameters that

cause unanticipated reductions in

margins of safety;

5. A non-willful compromise of an

application, test, or examination

required by 10 CFR Part 55 that:

(a) In the case of initial operator

licensing, contributes to an individual

being granted an operator or a senior

operator license, or

(b) In the case of requalification,

contributes to an individual being

permitted to perform the functions of an

operator or a senior operator.

6. A licensee failure to conduct

adequate oversight of contractors

resulting in the use of products or

services that are of defective or

indeterminate quality and that have

safety significance;

7. A licensed operator’s confirmed

positive test for drugs or alcohol that

does not result in a Severity Level I or

II violation;

8. Equipment failures caused by

inadequate or improper maintenance

that substantially complicates recovery

from a plant transient;

9. A failure to obtain prior

Commission approval required by 10

CFR 50.59 for a change, in which the

consequence of the change, is evaluated

as having low to moderate, or greater

safety significance (i.e., white, yellow,

or red) by the SDP;

10. The failure to update the FSAR as

required by 10 CFR 50.71(e) where the

unupdated FSAR was used in

performing a 10 CFR 50.59 evaluation

for a change to the facility or

procedures, implemented without prior

Commission approval, that results in a

condition evaluated as having low to

moderate, or greater safety significance

(i.e., white, yellow, or red) by the SDP;

or

11. The failure to make a report

required by 10 CFR 50.72 or 50.73

associated with any Severity Level III

violation.

D. Severity Level IV—Violations

Involving for Example

1. A less significant failure to comply

with the Action Statement for a

Technical Specification Limiting

Condition for Operation where the

appropriate action was not taken within

the required time, such as:

(a) In a pressurized water reactor, a 5

percent deficiency in the required

volume of the condensate storage tank;

or

(b) In a boiling water reactor, one

subsystem of the two independent MSIV

leakage control subsystems inoperable;

2. A non-willful compromise of an

application, test, or examination

required by 10 CFR Part 55 that:

(a) In the case of initial operator

licensing, is discovered and reported to

the NRC before an individual is granted

an operator or a senior operator license,

or

(b) In the case of requalification, is

discovered and reported to the NRC

before an individual is permitted to

perform the functions of an operator or

a senior operator, or

(c) Constitutes more than minor

concern.

3. A failure to meet regulatory

requirements that have more than minor

safety or environmental significance;

4. A failure to make a required

Licensee Event Report;

5. Violations of 10 CFR 50.59 that

result in conditions evaluated as having

very low safety significance (i.e., green)

by the SDP; or

6. A failure to update the FSAR as

required by 10 CFR 50.71(e) in cases

where the erroneous information is not

used to make an unacceptable change to

the facility or procedures.

E. Minor—Violations Involving for

Example

A failure to meet 10 CFR 50.59

requirements where there was not a

reasonable likelihood that the change

requiring 10 CFR 50.59 evaluation

would ever require Commission review

and approval prior to implementation.

In the case of a 10 CFR 50.71(e)

violation, where a failure to update the

FSAR would not have a material impact

on safety or licensed activities.

Supplement II—Part 50 Facility

Construction

This supplement provides examples

of violations in each of the four severity

levels as guidance in determining the

appropriate severity level for violations

in the area of Part 50 facility

construction.

A. Severity Level I—

Violations involving structures or

systems that are completed 17 in such a

manner that they would not have

Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices 25389

18See 10 CFR 73.2 for the definition of ‘‘formula

quantity.’’

19The term ‘‘unauthorized individual’’ as used in

this supplement means someone who was not

authorized for entrance into the area in question, or

not authorized to enter in the manner entered.

20The phrase ‘‘vital area’’ as used in this

supplement includes vital areas and material

access.

21See 10 CFR.73.2 for the definition of ‘‘special

nuclear material of moderate strategic significance.’’

22 In determining whether access can be easily

gained, factors such as predictability, identifiability,

and ease of passage should be considered.

satisfied their intended safety related

purpose.

B. Severity Level II—Violations

Involving for Example

1. A breakdown in the Quality

Assurance (QA) program as exemplified

by deficiencies in construction QA

related to more than one work activity

(e.g., structural, piping, electrical,

foundations). These deficiencies

normally involve the licensee’s failure

to conduct adequate audits or to take

prompt corrective action on the basis of

such audits and normally involve

multiple examples of deficient

construction or construction of

unknown quality due to inadequate

program implementation; or

2. A structure or system that is

completed in such a manner that it

could have an adverse effect on the

safety of operations.

C. Severity Level III—Violations

Involving for Example

1. A deficiency in a licensee QA

program for construction related to a

single work activity (e.g., structural,

piping, electrical, or foundations). This

significant deficiency normally involves

the licensee’s failure to conduct

adequate audits or to take prompt

corrective action on the basis of such

audits, and normally involves multiple

examples of deficient construction or

construction of unknown quality due to

inadequate program implementation;

2. A failure to confirm the design

safety requirements of a structure or

system as a result of inadequate

preoperational test program

implementation; or

3. A failure to make a required 10 CFR

50.55(e) report.

D. Severity Level IV—

Violations involving failure to meet

regulatory requirements including one

or more Quality Assurance Criterion not

amounting to Severity Level I, II, or III

violations that have more than minor

safety or environmental significance.

Supplement III—Safeguards

This supplement provides examples

of violations in each of the four severity

levels as guidance in determining the

appropriate severity level for violations

in the area of safeguards.

A. Severity Level I—Violations Involving

for Example

1. An act of radiological sabotage in

which the security system did not

function as required and, as a result of

the failure, there was a significant event,

such as:

(a) A Safety Limit, as defined in 10

CFR 50.36 and the Technical

Specifications, was exceeded;

(b) A system designed to prevent or

mitigate a serious safety event was not

able to perform its intended safety

function when actually called upon to

work; or

(c) An accidental criticality occurred;

2. The theft, loss, or diversion of a

formula quantity 18 of special nuclear

material (SNM); or

3. Actual unauthorized production of

a formula quantity of SNM.

B. Severity Level II—Violations

Involving for Example

1. The entry of an unauthorized

individual 19 who represents a threat

into a vital area 20 from outside the

protected area;

2. The theft, loss or diversion of SNM

of moderate strategic significance 21 in

which the security system did not

function as required; or

3. Actual unauthorized production of

SNM.

C. Severity Level III—Violations

Involving for Example:

1. A failure or inability to control

access through established systems or

procedures, such that an unauthorized

individual (i.e., not authorized

unescorted access to protected area)

could easily gain undetected access 22

into a vital area from outside the

protected area;

2. A failure to conduct any search at

the access control point or conducting

an inadequate search that resulted in the

introduction to the protected area of

firearms, explosives, or incendiary

devices and reasonable facsimiles

thereof that could significantly assist

radiological sabotage or theft of strategic

SNM;

3. A failure, degradation, or other

deficiency of the protected area

intrusion detection or alarm assessment

systems such that an unauthorized

individual who represents a threat

could predictably circumvent the

system or defeat a specific zone with a

high degree of confidence without

insider knowledge, or other significant

degradation of overall system capability;

4. A significant failure of the

safeguards systems designed or used to

prevent or detect the theft, loss, or

diversion of strategic SNM;

5. A failure to protect or control

classified or safeguards information

considered to be significant while the

information is outside the protected area

and accessible to those not authorized

access to the protected area;

6. A significant failure to respond to

an event either in sufficient time to

provide protection to vital equipment or

strategic SNM, or with an adequate

response force; or

7. A failure to perform an appropriate

evaluation or background investigation

so that information relevant to the

access determination was not obtained

or considered and as a result a person,

who would likely not have been granted

access by the licensee, if the required

investigation or evaluation had been

performed, was granted access.

D. Severity Level IV—Violations

Involving for Example:

1. A failure or inability to control

access such that an unauthorized

individual (i.e., authorized to protected

area but not to vital area) could easily

gain undetected access into a vital area

from inside the protected area or into a

controlled access area;

2. A failure to respond to a suspected

event in either a timely manner or with

an adequate response force;

3. A failure to implement 10 CFR

Parts 25 and 95 with respect to the

information addressed under Section

142 of the Act, and the NRC approved

security plan relevant to those parts;

4. A failure to conduct a proper search

at the access control point;

5. A failure to properly secure or

protect classified or safeguards

information inside the protected area

that could assist an individual in an act

of radiological sabotage or theft of

strategic SNM where the information

was not removed from the protected

area;

6. A failure to control access such that

an opportunity exists that could allow

unauthorized and undetected access

into the protected area but that was

neither easily or likely to be exploitable;

7. A failure to conduct an adequate

search at the exit from a material access

area;

8. A theft or loss of SNM of low

strategic significance that was not

detected within the time period

specified in the security plan, other

relevant document, or regulation; or

9. Other violations that have more

than minor safeguards significance.

25390 Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices

23Personnel overexposures and associated

violations incurred during a life-saving or other

emergency response effort will be treated on a caseby-case basis.

Supplement IV—Health Physics (10

CFR Part 20)

This supplement provides examples

of violations in each of the four severity

levels as guidance in determining the

appropriate severity level for violations

in the area of health physics, 10 CFR

Part 20.23

A. Severity Level I—Violations Involving

for Example:

1. A radiation exposure during any

year of a worker in excess of 25 rems

total effective dose equivalent, 75 rems

to the lens of the eye, or 250 rads to the

skin of the whole body, or to the feet,

ankles, hands or forearms, or to any

other organ or tissue;

2. A radiation exposure over the

gestation period of the embryo/fetus of

a declared pregnant woman in excess of

2.5 rems total effective dose equivalent;

3. A radiation exposure during any

year of a minor in excess of 2.5 rems

total effective dose equivalent, 7.5 rems

to the lens of the eye, or 25 rems to the

skin of the whole body, or to the feet,

ankles, hands or forearms, or to any

other organ or tissue;

4. An annual exposure of a member of

the public in excess of 1.0 rem total

effective dose equivalent;

5. A release of radioactive material to

an unrestricted area at concentrations in

excess of 50 times the limits for

members of the public as described in

10 CFR 20.1302(b)(2)(i); or

6. Disposal of licensed material in

quantities or concentrations in excess of

10 times the limits of 10 CFR 20.2003.

B. Severity Level II—Violations

Involving for Example

1. A radiation exposure during any

year of a worker in excess of 10 rems

total effective dose equivalent, 30 rems

to the lens of the eye, or 100 rems to the

skin of the whole body, or to the feet,

ankles, hands or forearms, or to any

other organ or tissue;

2. A radiation exposure over the

gestation period of the embryo/fetus of

a declared pregnant woman in excess of

1.0 rem total effective dose equivalent;

3. A radiation exposure during any

year of a minor in excess of 1 rem total

effective dose equivalent; 3.0 rems to

the lens of the eye, or 10 rems to the

skin of the whole body, or to the feet,

ankles, hands or forearms, or to any

other organ or tissue;

4. An annual exposure of a member of

the public in excess of 0.5 rem total

effective dose equivalent;

5. A release of radioactive material to

an unrestricted area at concentrations in

excess of 10 times the limits for

members of the public as described in

10 CFR 20.1302(b)(2)(i) (except when

operation up to 0.5 rem a year has been

approved by the Commission under

§ 20.1301(c));

6. Disposal of licensed material in

quantities or concentrations in excess of

five times the limits of 10 CFR 20.2003;

or

7. A failure to make an immediate

notification as required by 10 CFR

20.2202 (a)(1) or (a)(2).

C. Severity Level III—Violations

Involving for Example

1. A radiation exposure during any

year of a worker in excess of 5 rems total

effective dose equivalent, 15 rems to the

lens of the eye, or 50 rems to the skin

of the whole body or to the feet, ankles,

hands or forearms, or to any other organ

or tissue;

2. A radiation exposure over the

gestation period of the embryo/fetus of

a declared pregnant woman in excess of

0.5 rem total effective dose equivalent

(except when doses are in accordance

with the provisions of § 20.1208(d));

3. A radiation exposure during any

year of a minor in excess of 0.5 rem total

effective dose equivalent; 1.5 rems to

the lens of the eye, or 5 rems to the skin

of the whole body, or to the feet, ankles,

hands or forearms, or to any other organ

or tissue;

4. An annual exposure of a member of

the public in excess of 0.1 rem total

effective dose equivalent (except when

operation up to 0.5 rem a year has been

approved by the Commission under

§ 20.1301(c));

5. A release of radioactive material to

an unrestricted area at concentrations in

excess of two times the effluent

concentration limits referenced in 10

CFR 20.1302(b)(2)(i) (except when

operation up to 0.5 rem a year has been

approved by the Commission under

Section 20.1301(c));

6. A failure to make a 24-hour

notification required by 10 CFR

20.2202(b) or an immediate notification

required by 10 CFR 20.2201(a)(1)(i);

7. A substantial potential for

exposures or releases in excess of the

applicable limits in 10 CFR 20.1001–

20.2401 whether or not an exposure or

release occurs;

8. Disposal of licensed material not

covered in Severity Levels I or II;

9. A release for unrestricted use of

contaminated or radioactive material or

equipment that poses a realistic

potential for exposure of the public to

levels or doses exceeding the annual

dose limits for members of the public;

10. Conduct of licensee activities by a

technically unqualified person; or

11. A violation involving failure to

secure, or maintain surveillance over,

licensed material that:

(a) Involves licensed material in any

aggregate quantity greater than 1000

times the quantity specified in

Appendix C to Part 20; or

(b) Involves licensed material in any

aggregate quantity greater than 10 times

the quantity specified in Appendix C to

Part 20, where such failure is

accompanied by the absence of a

functional program to detect and deter

security violations that includes

training, staff awareness, detection

(including auditing), and corrective

action (including disciplinary action); or

(c) Results in a substantial potential

for exposures or releases in excess of the

applicable limits in Part 20.

D. Severity Level IV—Violations

Involving for Example:

1. Exposures in excess of the limits of

10 CFR 20.1201, 20.1207, or 20.1208 not

constituting Severity Level I, II, or III

violations;

2. A release of radioactive material to

an unrestricted area at concentrations in

excess of the limits for members of the

public as referenced in 10 CFR

20.1302(b)(2)(i) (except when operation

up to 0.5 rem a year has been approved

by the Commission under § 20.1301(c));

3. A radiation dose rate in an

unrestricted or controlled area in excess

of 0.002 rem in any 1 hour (2 millirem/

hour) or 50 millirems in a year;

4. Failure to maintain and implement

radiation programs to keep radiation

exposures as low as is reasonably

achievable;

5. Doses to a member of the public in

excess of any EPA generally applicable

environmental radiation standards, such

as 40 CFR Part 190;

6. A failure to make the 30-day

notification required by 10 CFR

20.2201(a)(1)(ii) or 20.2203(a);

7. A failure to make a timely written

report as required by 10 CFR 20.2201(b),

20.2204, or 20.2206;

8. A failure to report an exceedance of

the dose constraint established in 10

CFR 20.1101(d) or a failure to take

corrective action for an exceedance, as

required by 10 CFR 20.1101(d);

9. Any other matter that has more

than a minor safety, health, or

environmental significance; or

10. A violation involving an isolated

failure to secure, or maintain

surveillance over, licensed material that

is not otherwise characterized in

Example IV.C.11 and that involves

licensed material in any aggregate

quantity greater than 10 times the

Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices 25391

24Some transportation requirements are applied

to more than one licensee involved in the same

activity such as a shipper and a carrier. When a

violation of such a requirement occurs, enforcement

action will be directed against the responsible

licensee which, under the circumstances of the

case, may be one or more of the licensees involved.

quantity specified in Appendix C to Part

20, provided that: (i) the material is

labeled as radioactive or located in an

area posted as containing radioactive

materials; and (ii) such failure occurs

despite a functional program to detect

and deter security violations that

includes training, staff awareness,

detection (including auditing), and

corrective action (including disciplinary

action).

E. Minor—Violations Involving for

Example

A violation involving an isolated

failure to secure, or maintain

surveillance over, licensed material in

an aggregate quantity that does not

exceed 10 times the quantity specified

in Appendix C to Part 20.

Supplement V—Transportation

This supplement provides examples

of violations in each of the four severity

levels as guidance in determining the

appropriate severity level for violations

in the area of NRC transportation

requirements.24

A. Severity Level I—Violations Involving

for Example

1. Failure to meet transportation

requirements that resulted in loss of

control of radioactive material with a

breach in package integrity such that the

material caused a radiation exposure to

a member of the public and there was

clear potential for the public to receive

more than .1 rem to the whole body;

2. Surface contamination in excess of

50 times the NRC limit; or

3. External radiation levels in excess

of 10 times the NRC limit.

B. Severity Level II—Violations

Involving for Example

1. Failure to meet transportation

requirements that resulted in loss of

control of radioactive material with a

breach in package integrity such that

there was a clear potential for the

member of the public to receive more

than .1 rem to the whole body;

2. Surface contamination in excess of

10, but not more than 50 times the NRC

limit;

3. External radiation levels in excess

of five, but not more than 10 times the

NRC limit; or

4. A failure to make required initial

notifications associated with Severity

Level I or II violations.

C. Severity Level III—Violations

Involving for Example

1. Surface contamination in excess of

five but not more than 10 times the NRC

limit;

2. External radiation in excess of one

but not more than five times the NRC

limit;

3. Any noncompliance with labeling,

placarding, shipping paper, packaging,

loading, or other requirements that

could reasonably result in the following:

(a) A significant failure to identify the

type, quantity, or form of material;

(b) A failure of the carrier or recipient

to exercise adequate controls; or

(c) A substantial potential for either

personnel exposure or contamination

above regulatory limits or improper

transfer of material; or

4. A failure to make required initial

notification associated with Severity

Level III violations.

D. Severity Level IV—Violations

Involving for Example

1. A breach of package integrity

without external radiation levels

exceeding the NRC limit or without

contamination levels exceeding five

times the NRC limits;

2. Surface contamination in excess of

but not more than five times the NRC

limit;

3. A failure to register as an

authorized user of an NRC-Certified

Transport package;

4. A noncompliance with shipping

papers, marking, labeling, placarding,

packaging or loading not amounting to

a Severity Level I, II, or III violation;

5. A failure to demonstrate that

packages for special form radioactive

material meets applicable regulatory

requirements;

6. A failure to demonstrate that

packages meet DOT Specifications for

7A Type A packages; or

7. Other violations that have more

than minor safety or environmental

significance.

Supplement VI—Fuel Cycle and

Materials Operations

This supplement provides examples

of violations in each of the four severity

levels as guidance in determining the

appropriate severity level for violations

in the area of fuel cycle and materials

operations.

A. Severity Level I—Violations Involving

for Example

1. Radiation levels, contamination

levels, or releases that exceed 10 times

the limits specified in the license;

2. A system designed to prevent or

mitigate a serious safety event not being

operable when actually required to

perform its design function;

3. A nuclear criticality accident;

4. A failure to follow the procedures

of the quality management program,

required by 10 CFR 35.32, that results in

a death or serious injury (e.g.,

substantial organ impairment) to a

patient;

5. A safety limit, as defined in 10 CFR

76.4, the Technical Safety

Requirements, or the application being

exceeded; or

6. Significant injury or loss of life due

to a loss of control over licensed or

certified activities, including chemical

processes that are integral to the

licensed or certified activity, whether

radioactive material is released or not.

B. Severity Level II—Violations

Involving for Example

1. Radiation levels, contamination

levels, or releases that exceed five times

the limits specified in the license;

2. A system designed to prevent or

mitigate a serious safety event being

inoperable;

3. A substantial programmatic failure

in the implementation of the quality

management program required by 10

CFR 35.32 that results in a

misadministration;

4. A failure to establish, implement,

or maintain all criticality controls (or

control systems) for a single nuclear

criticality scenario when a critical mass

of fissile material was present or

reasonably available, such that a nuclear

criticality accident was possible; or

5. The potential for a significant

injury or loss of life due to a loss of

control over licensed or certified

activities, including chemical processes

that are integral to the licensed or

certified activity, whether radioactive

material is released or not (e.g.,

movement of liquid UF6 cylinder by

unapproved methods).

C. Severity Level III—Violations

Involving for Example

1. Possession or use of unauthorized

equipment or materials in the conduct

of licensee activities which degrades

safety;

2. Use of radioactive material on

humans where such use is not

authorized;

3. Conduct of licensed activities by a

technically unqualified or uncertified

person;

4. A substantial potential for

exposures, radiation levels,

contamination levels, or releases,

including releases of toxic material

caused by a failure to comply with NRC

regulations, from licensed or certified

activities in excess of regulatory limits;

25392 Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices

25 In applying the examples in this supplement

regarding inaccurate or incomplete information and

records, reference should also be made to the

guidance in Section IX. ‘‘Inaccurate and Incomplete

Information,’’ and to the definition of ‘‘licensee

official’’ contained in Section IV.C.

26The example for violations for fitness-for-duty

relate to violations of 10 CFR Part 26.

5. Substantial failure to implement

the quality management program as

required by 10 CFR 35.32 that does not

result in a misadministration; failure to

report a misadministration; or

programmatic weakness in the

implementation of the quality

management program that results in a

misadministration;

6. A failure, during radiographic

operations, to have present at least two

qualified individuals or to use

radiographic equipment, radiation

survey instruments, and/or personnel

monitoring devices as required by 10

CFR Part 34;

7. A failure to submit an NRC Form

241 as required by 10 CFR 150.20;

8. A failure to receive required NRC

approval prior to the implementation of

a change in licensed activities that has

radiological or programmatic

significance, such as, a change in

ownership; lack of an RSO or

replacement of an RSO with an

unqualified individual; a change in the

location where licensed activities are

being conducted, or where licensed

material is being stored where the new

facilities do not meet the safety

guidelines; or a change in the quantity

or type of radioactive material being

processed or used that has radiological

significance;

9. A significant failure to meet

decommissioning requirements

including a failure to notify the NRC as

required by regulation or license

condition, substantial failure to meet

decommissioning standards, failure to

conduct and/or complete

decommissioning activities in

accordance with regulation or license

condition, or failure to meet required

schedules without adequate

justification;

10. A significant failure to comply

with the action statement for a

Technical Safety Requirement Limiting

Condition for Operation where the

appropriate action was not taken within

the required time, such as:

(a) In an autoclave, where a

containment isolation valve is

inoperable for a period in excess of that

allowed by the action statement; or

(b) Cranes or other lifting devices

engaged in the movement of cylinders

having inoperable safety components,

such as redundant braking systems, or

other safety devices for a period in

excess of that allowed by the action

statement;

11. A system designed to prevent or

mitigate a serious safety event:

(a) Not being able to perform its

intended function under certain

conditions (e.g., safety system not

operable unless utilities available,

materials or components not according

to specifications); or

(b) Being degraded to the extent that

a detailed evaluation would be required

to determine its operability;

12. Changes in parameters that cause

unanticipated reductions in margins of

safety;

13. A significant failure to meet the

requirements of 10 CFR 76.68, including

a failure such that a required certificate

amendment was not sought;

14. A failure of the certificate holder

to conduct adequate oversight of

contractors resulting in the use of

products or services that are of defective

or indeterminate quality and that have

safety significance;

15. Equipment failures caused by

inadequate or improper maintenance

that substantially complicates recovery

from a plant transient;

16. A failure to establish, maintain, or

implement all but one criticality control

(or control systems) for a single nuclear

criticality scenario when a critical mass

of fissile material was present or

reasonably available, such that a nuclear

criticality accident was possible; or

17. A failure, during radiographic

operations, to stop work after a pocket

dosimeter is found to have gone offscale, or after an electronic dosimeter

reads greater than 200 mrem, and before

a determination is made of the

individual’s actual radiation exposure.

D. Severity Level IV—Violations

Involving for Example

1. A failure to maintain patients

hospitalized who have cobalt-60,

cesium-137, or iridium-192 implants or

to conduct required leakage or

contamination tests, or to use properly

calibrated equipment;

2. Other violations that have more

than minor safety or environmental

significance;

3. Failure to follow the quality

management (QM) program, including

procedures, whether or not a

misadministration occurs, provided the

failures are isolated, do not demonstrate

a programmatic weakness in the

implementation of the QM program, and

have limited consequences if a

misadministration is involved; failure to

conduct the required program review; or

failure to take corrective actions as

required by 10 CFR 35.32;

4. A failure to keep the records

required by 10 CFR 35.32 or 35.33;

5. A less significant failure to comply

with the Action Statement for a

Technical Safety Requirement Limiting

Condition for Operation when the

appropriate action was not taken within

the required time;

6. A failure to meet the requirements

of 10 CFR 76.68 that does not result in

a Severity Level I, II, or III violation;

7. A failure to make a required written

event report, as required by 10 CFR

76.120(d)(2); or

8. A failure to establish, implement,

or maintain a criticality control (or

control system) for a single nuclear

criticality scenario when the amount of

fissile material available was not, but

could have been sufficient to result in

a nuclear criticality.

Supplement VII—Miscellaneous

Matters

This supplement provides examples

of violations in each of the four severity

levels as guidance in determining the

appropriate severity level for violations

involving miscellaneous matters.

A. Severity Level I—Violations Involving

for Example

1. Inaccurate or incomplete

information 25 that is provided to the

NRC (a) deliberately with the knowledge

of a licensee official that the information

is incomplete or inaccurate, or (b) if the

information, had it been complete and

accurate at the time provided, likely

would have resulted in regulatory action

such as an immediate order required by

the public health and safety;

2. Incomplete or inaccurate

information that the NRC requires be

kept by a licensee that is (a) incomplete

or inaccurate because of falsification by

or with the knowledge of a licensee

official, or (b) if the information, had it

been complete and accurate when

reviewed by the NRC, likely would have

resulted in regulatory action such as an

immediate order required by public

health and safety considerations;

3. Information that the licensee has

identified as having significant

implications for public health and safety

or the common defense and security

(‘‘significant information identified by a

licensee’’) and is deliberately withheld

from the Commission;

4. Action by senior corporate

management in violation of 10 CFR 50.7

or similar regulations against an

employee;

5. A knowing and intentional failure

to provide the notice required by 10

CFR Part 21; or

6. A failure to substantially

implement the required fitness-for-duty

program.26

Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices 25393

B. Severity Level II—Violations

Involving for Example

1. Inaccurate or incomplete

information that is provided to the NRC

(a) by a licensee official because of

careless disregard for the completeness

or accuracy of the information, or (b) if

the information, had it been complete

and accurate at the time provided, likely

would have resulted in regulatory action

such as a show cause order or a different

regulatory position;

2. Incomplete or inaccurate

information that the NRC requires be

kept by a licensee which is (a)

incomplete or inaccurate because of

careless disregard for the accuracy of the

information on the part of a licensee

official, or (b) if the information, had it

been complete and accurate when

reviewed by the NRC, likely would have

resulted in regulatory action such as a

show cause order or a different

regulatory position;

3. ‘‘Significant information identified

by a licensee’’ and not provided to the

Commission because of careless

disregard on the part of a licensee

official;

4. An action by plant management or

mid-level management in violation of 10

CFR 50.7 or similar regulations against

an employee;

5. A failure to provide the notice

required by 10 CFR Part 21;

6. A failure to remove an individual

from unescorted access who has been

involved in the sale, use, or possession

of illegal drugs within the protected area

or take action for on duty misuse of

alcohol, prescription drugs, or over-thecounter drugs;

7. A failure to take reasonable action

when observed behavior within the

protected area or credible information

concerning activities within the

protected area indicates possible

unfitness for duty based on drug or

alcohol use;

8. A deliberate failure of the licensee’s

Employee Assistance Program (EAP) to

notify licensee’s management when

EAP’s staff is aware that an individual’s

condition may adversely affect safety

related activities; or

9. The failure of licensee management

to take effective action in correcting a

hostile work environment.

C. Severity Level III—Violations

Involving for Example

1. Incomplete or inaccurate

information that is provided to the NRC

(a) because of inadequate actions on the

part of licensee officials but not

amounting to a Severity Level I or II

violation, or (b) if the information, had

it been complete and accurate at the

time provided, likely would have

resulted in a reconsideration of a

regulatory position or substantial further

inquiry such as an additional inspection

or a formal request for information;

2. Incomplete or inaccurate

information that the NRC requires be

kept by a licensee that is (a) incomplete

or inaccurate because of inadequate

actions on the part of licensee officials

but not amounting to a Severity Level I

or II violation, or (b) if the information,

had it been complete and accurate when

reviewed by the NRC, likely would have

resulted in a reconsideration of a

regulatory position or substantial further

inquiry such as an additional inspection

or a formal request for information;

3. Inaccurate or incomplete

performance indicator (PI) data

submitted to the NRC by a Part 50

licensee that would have caused a PI to

change from green to either yellow or

red; white to either yellow or red; or

yellow to red.

4. A failure to provide ‘‘significant

information identified by a licensee’’ to

the Commission and not amounting to

a Severity Level I or II violation;

5. An action by first-line supervision

or other low-level management in

violation of 10 CFR 50.7 or similar

regulations against an employee;

6. An inadequate review or failure to

review such that, if an appropriate

review had been made as required, a 10

CFR Part 21 report would have been

made;

7. A failure to complete a suitable

inquiry on the basis of 10 CFR Part 26,

keep records concerning the denial of

access, or respond to inquiries

concerning denials of access so that, as

a result of the failure, a person

previously denied access for fitness-forduty reasons was improperly granted

access;

8. A failure to take the required action

for a person confirmed to have been

tested positive for illegal drug use or

take action for onsite alcohol use; not

amounting to a Severity Level II

violation;

9. A failure to assure, as required, that

contractors have an effective fitness-forduty program; or

10. Threats of discrimination or

restrictive agreements which are

violations under NRC regulations such

as 10 CFR 50.7(f).

D. Severity Level IV—Violations

Involving for Example

1. Incomplete or inaccurate

information that is provided to the NRC

but not amounting to a Severity Level I,

II, or III violation;

2. Information that the NRC requires

be kept by a licensee and that is

incomplete or inaccurate and of more

than minor significance but not

amounting to a Severity Level I, II, or III

violation;

3. Inaccurate or incomplete

performance indicator (PI) data

submitted to the NRC by a Part 50

licensee that would have caused a PI to

change from green to white.

4. An inadequate review or failure to

review under 10 CFR Part 21 or other

procedural violations associated with 10

CFR Part 21 with more than minor

safety significance;

5. Violations of the requirements of

Part 26 of more than minor significance;

6. A failure to report acts of licensed

operators or supervisors pursuant to 10

CFR 26.73; or

7. Discrimination cases which, in

themselves, do not warrant a Severity

Level III categorization.

E. Minor—Violations Involving for

Example

Inaccurate or incomplete performance

indicator (PI) data submitted to the NRC

by a Part 50 licensee that would not

have caused a PI to change color.

Supplement VIII—Emergency

Preparedness

This supplement provides examples

of violations in each of the four severity

levels as guidance in determining the

appropriate severity level for violations

in the area of emergency preparedness.

It should be noted that citations are not

normally made for violations involving

emergency preparedness occurring

during emergency exercises. However,

where exercises reveal (i) training,

procedural, or repetitive failures for

which corrective actions have not been

taken, (ii) an overall concern regarding

the licensee’s ability to implement its

plan in a manner that adequately

protects public health and safety, or (iii)

poor self critiques of the licensee’s

exercises, enforcement action may be

appropriate.

A. Severity Level I—Violations Involving

for Example

In a general emergency, licensee

failure to promptly (1) correctly classify

the event, (2) make required

notifications to responsible Federal,

State, and local agencies, or (3) respond

to the event (e.g., assess actual or

potential offsite consequences, activate

emergency response facilities, and

augment shift staff).

B. Severity Level II—Violations

Involving for Example

1. In a site emergency, licensee failure

to promptly (1) correctly classify the

event, (2) make required notifications to

25394 Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices

responsible Federal, State, and local

agencies, or (3) respond to the event

(e.g., assess actual or potential offsite

consequences, activate emergency

response facilities, and augment shift

staff); or

2. A licensee failure to meet or

implement more than one emergency

planning standard involving assessment

or notification.

C. Severity Level III—Violations

Involving for Example

1. In an alert, licensee failure to

promptly (1) correctly classify the event,

(2) make required notifications to

responsible Federal, State, and local

agencies, or (3) respond to the event

(e.g., assess actual or potential offsite

consequences, activate emergency

response facilities, and augment shift

staff); or

2. A licensee failure to meet or

implement one emergency planning

standard involving assessment or

notification.

D. Severity Level IV—Violations

Involving for Example

A licensee failure to meet or

implement any emergency planning

standard or requirement not directly

related to assessment and notification.

Interim Enforcement Policies

Interim Enforcement Policy for

Generally Licensed Devices Containing

Byproduct Material (10 CFR 31.5)

This section sets forth the interim

enforcement policy that the NRC will

follow to exercise enforcement

discretion for certain violations of

requirements in 10 CFR Part 31 for

generally licensed devices containing

byproduct material. It addresses

violations that persons licensed

pursuant to 10 CFR 31.5 identify and

correct now, as well as during the initial

cycle of the notice and response

program contemplated by the proposed

new requirements published in the

Federal Register on December 2, 1998

(63 FR 66492), entitled ‘‘Requirements

for Those Who Possess Certain

Industrial Devices Containing

Byproduct Material to Provide

Requested Information’’.

Exercise of Enforcement Discretion

Under this interim enforcement

policy, enforcement action normally

will not be taken for violations of 10

CFR 31.5 if they are identified by the

general licensee, and reported to the

NRC if reporting is required, if the

general licensee takes appropriate

corrective action to address the specific

violations and prevent recurrence of

similar problems.

Exceptions

Enforcement action may be taken

where there is: (a) failure to take

appropriate corrective action to prevent

recurrence of similar violations; (b)

failure to respond and provide the

information required by the notice and

response program (if it becomes a final

rule); (c) failure to provide complete and

accurate information to the NRC; or (d)

a willful violation, such as willfully

disposing of generally licensed material

in an unauthorized manner.

Enforcement sanctions in these cases

may include civil penalties as well as

Orders to modify or revoke the authority

to possess radioactive sources under the

general license.

Interim Enforcement Policy Regarding

Enforcement Discretion for Nuclear

Power Plants During the Year 2000

Transition

This section sets forth the interim

enforcement policy that will govern the

exercise of enforcement discretion by

the NRC staff when licensees of

operating nuclear power plants find it

necessary to deviate from license

conditions, including technical

specifications (TSs), in those cases in

which year 2000 (Y2K) related

complications would otherwise require

a plant shutdown that could adversely

affect the stability and reliability of the

electrical power grid. This policy does

not extend to situations in which a

licensee may be unable to communicate

with the NRC.

The policy is effective August 30,

1999, and will remain in effect through

January 1, 2001. This policy only

applies during Y2K transition or

rollover periods (December 31, 1999,

through January 3, 2000; February 28,

2000, through March 1, 2000; and

December 30, 2000, through January 1,

2001). During these periods, a licensee

may contact the NRC Headquarters

Operations Center and seek NRC

enforcement discretion with regard to

the potential noncompliance with

license conditions, including TSs, if the

licensee has determined that:

(a) Complying with license

conditions, including TSs, in a Y2Krelated situation would require a plant

shutdown;

(b) Continued plant operation is

needed to help maintain a reliable and

stable grid; and

(c) Any decrease in safety as a result

of continued plant operation is small

(considering both risk and deterministic

aspects), and reasonable assurance of

public health and safety, the

environment, and security is maintained

with the enforcement discretion.

Licensees are expected to follow the

existing guidance as stated in NRC

Inspection Manual Part 9900 for Notices

of Enforcement Discretion to the

maximum extent practicable,

particularly regarding a safety

determination and notification of NRC.

A licensee seeking NRC enforcement

discretion must provide a written

justification, or in circumstances in

which good cause is shown, an oral

justification followed as soon as

possible by written justification. The

justification must document the need

and safety basis for the request and

provide whatever other information the

NRC staff needs to make a decision

regarding whether the exercise of

discretion is appropriate. The NRC staff

may grant enforcement discretion on the

basis of balancing the public health and

safety or common defense and security

of not operating against potential

radiological or other hazards associated

with continued operation, and a

determination that safety will not be

unacceptably affected by exercising the

discretion. The Director of the Office of

Nuclear Reactor Regulation, or designee,

will advise the licensee whether the

NRC has approved the licensee’s request

and, if so, will subsequently confirm the

exercise of discretion in writing.

Enforcement discretion will only be

exercised if the NRC staff is clearly

satisfied that the action is consistent

with protecting public health and safety

and is warranted in the circumstances

presented by the licensee.

If the volume of requests to the NRC

Headquarters Operations Center is such

that the NRC staff cannot review and

approve all licensee requests in a timely

fashion, the NRC staff will obtain the

safety-significant information from the

licensee to enable the NRC staff to make

a prompt initial assessment. Unless the

assessment is unfavorable, the licensee

would be permitted to proceed with its

planned course of action. The NRC staff

will complete these assessments as time

permits and the licensee will be advised

of the results orally, if possible, and

then in writing. If the NRC staff’s

prompt initial assessment or subsequent

assessment determines that a licensee’s

actions raise safety concerns, the

licensee would be so informed. The

licensee would then be required to

follow its license conditions, including

TSs.

If there are communications

difficulties between the licensee and the

NRC, the licensee is encouraged to

interact with the NRC inspector onsite

who will have a dedicated satellite

telephone. The inspector should be able

to facilitate communication with the

NRC Headquarters Operations Center

Federal Register / Vol. 65, No. 84 / Monday, May 1, 2000 / Notices 25395

and/or the NRC Regional Incident

Response Centers (IRCs). If

communication with the NRC

Headquarters Operations Center is not

possible, then the licensee should

contact the IRC in NRC Region IV to

discuss enforcement discretion.

Similarly, if the Region IV IRC cannot be

reached, then the licensee should

attempt to contact the Region I, II and

III IRCs. Although it is considered

highly unlikely, if communication with

NRC is not possible, the licensee should

follow the plant license conditions,

including technical specifications.

In conducting its assessments, the

licensee should follow, to the extent

practicable, the guidance in NRC

Inspection Manual Part 9900 for Notices

of Enforcement Discretion. Contrary to

Part 9900 Section B.3 guidance, it is not

necessary for an emergency to be

declared by a government entity.

Licensees are encouraged to contact

NRC early in their evaluation process,

particularly if time is of the essence,

even though complete information as

specified in Part 9900 may not be

available.

The decision to exercise enforcement

discretion does not change the fact that

the licensee will be in noncompliance

nor does it imply that enforcement

discretion is being exercised for any

noncompliance that may have led to the

noncompliance at issue. To the extent

noncompliance was involved, the NRC

staff will normally take enforcement

action for the root causes that led to the

noncompliance for which enforcement

discretion was granted. Enforcement

action will also be considered in those

cases in which incorrect or incomplete

information was provided to the NRC

staff by a licensee in its justification.

The NRC recognizes that a licensee will

need to exercise judgement in making a

determination under this discretion

provision. Consistent with the NRC’s

position involving 10 CFR 50.54(x),

enforcement action for a violation of a

license condition, including a TS, will

not be taken unless a licensee’s action

was clearly unreasonable considering all

the relevant circumstances. Enforcement

action could include assessment of civil

penalties and the issuance of orders.

Interim Enforcement Policy Regarding

Enforcement Discretion for Inaccurate

or Incomplete Performance Indicator

Data for Nuclear Power Plants

This section sets forth the interim

enforcement policy that the NRC will

follow to exercise enforcement

discretion for inaccurate or incomplete

performance indicator (PI) data

submitted to the NRC as part of the Part

50 Reactor Oversight Process. The

policy is effective until January 31,

2001.

Because both the NRC and licensees

are in a learning process for the

submission and review of PI data, some

errors are expected. Therefore, in

accordance with Section VII.B.6 of the

Enforcement Policy, the NRC will

refrain from issuing enforcement action

for all non-willful violations of 10 CFR

50.9 for the submittal of inaccurate or

incomplete PI data. Non-willful

violations will be documented in

inspection reports followed by an

explanation that the NRC is exercising

this discretion. Violations involving

inaccurate or incomplete PI data

submitted to the NRC that would not

have caused a PI to change color do not

normally warrant documentation given

the minimal safety significance.

Consistent with existing policy, no

enforcement action will be taken for

these minor violations.

Dated at Rockville, Maryland, this 20th day

of April, 2000.

For the Nuclear Regulatory Commission.

Annette L. Vietti-Cook,

Secretary of the Commission.

[FR Doc. 00–10394 Filed 4–28–00; 8:45 am]

BILLING CODE 7590–01–P

NUCLEAR REGULATORY

COMMISSION

Notice of Intent To Prepare a Draft

Supplement to the Generic

Environmental Impact Statement on

Decommissioning of Nuclear Facilities

and To Hold a Public Meeting for the

Purpose of Scoping and To Solicit

Public Input Into the Process

Notice is hereby given that the U.S.

Nuclear Regulatory Commission (NRC,

the Commission) intends to prepare a

draft supplement to the Final Generic

Environmental Impact Statement (GEIS)

on Decommissioning of Nuclear

Facilities (NUREG–0586, August 1988)

and to hold public scoping meetings for

the purpose of soliciting comments.

Although NUREG–0586 covered all

NRC-licensed facilities, this supplement

will address only the decommissioning

of nuclear power reactors.

The NRC will hold a public scoping

meeting on May 17, 2000, at the Boston

Marriott Copley Place, 110 Huntington

Avenue, Boston, Massachusetts 02116

(telephone: 617–236–5800) to present an

overview of the proposed supplement to

the GEIS and to accept public comment

on its proposal. The public scoping

meeting will begin at 7:00 p.m. and

continue to 10:00 p.m.

The meeting will be transcribed and

will include (1) a presentation by the

NRC staff on the reasons for preparing

a supplement to the GEIS and the

environmental issues related to power

reactor decommissioning to be

addressed in the GEIS, and (2) the

opportunity for interested government

agencies, private organizations, and

individuals to provide comments.

Anyone wishing to attend or present

oral comments at this meeting may

preregister by contacting Mr. Dino C.

Scaletti by telephone at 1–800–368–

5642, extension 1104, or by Internet to

the NRC at DGEIS@nrc.gov, 1 week prior

to a specific meeting. Members of the

public may also register to provide oral

comments up to 15 minutes prior to the

start of each meeting. Individual oral

comments may be limited by the time

available, depending on the number of

persons who register. If special

equipment or accommodations are

needed to attend or present information

at the public meeting, the need should

be brought to Mr. Scaletti’s attention no

later than 1 week prior to a specific

meeting, so that the NRC staff can

determine whether the request can be

accommodated.

Any interested party may submit

comments related to the NRC’s intent to

supplement the GEIS for consideration

by the NRC staff. To be certain of

consideration, comments on the intent

to prepare the supplement must be

received by July 15, 2000. Comments

received after the due date will be

considered if it is practical to do so. At

this time, comments are being sought

only on the intent to prepare the

supplement. The NRC staff currently

projects issuance of the draft

supplement for comment in early 2001.

Comments on the draft supplement will

be solicited at that time. Written

comments should be sent to:

Chief, Rules and Directives Branch,

Division of Administrative Services,

Mail Stop T–6 D59, U.S. Nuclear

Regulatory Commission, Washington,

DC 20555–0001

Comments may be hand-delivered to

the NRC at 11545 Rockville Pike,

Rockville, Maryland, between 7:45 a.m.

and 4:15 p.m. on Federal workdays.

Submittal of electronic comments may

be sent by the Internet to the NRC at

DGEIS@nrc.gov. All comments received

by the Commission, including those

made by Federal, State, and local

agencies, Indian tribes, or other

interested persons, will be made

available for public inspection at the

Commission’s Public Document Room,

2120 L Street, NW, in Washington, DC.

Also, publicly available records will be

accessible electronically from the

ADAMS Public Library component on