[Federal Register Volume 65, Number 84 (Monday, May 1, 2000)]
[Notices]
[Pages 25368-25395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10394]


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NUCLEAR REGULATORY COMMISSION

[NUREG--1600]


Revision of the NRC Enforcement Policy

AGENCY: Nuclear Regulatory Commission.

ACTION: Policy Statement: revision.

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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 Renee 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.

[[Page 25369]]

    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.
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    \1\ See letter from Ralph Beedle of the Nuclear Energy 
Institute, to David L. Meyer of the NRC, dated February 22, 1999.
    \2\ See letter from Robert W. Bishop of NEI, to David L. Meyer 
of the NRC, dated September 8, 1999.
    \3\ The Commission paper addressing the results of the revised 
reactor oversight process pilot program includes a complete list of 
the 21 commentors and their comments.
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    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 risk-informed 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

[[Page 25370]]

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 risk-informed, 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

[[Page 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 Non-Licensees
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 risk-informed 
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.

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    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:
    <bullet> Deter noncompliance by emphasizing the importance of 
compliance with NRC requirements, and
    <bullet> 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.
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    \4\ This 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 non-
licensees. Specific guidance regarding enforcement action against 
individuals and non-licensees is addressed in Sections VIII and X, 
respectively.
    \5\ The term ``contractor'' as used in this policy includes 
vendors who supply products or services to be used in an NRC-
licensed facility or activity.
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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.
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    \6\ The 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.
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    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

[[Page 25373]]

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.
---------------------------------------------------------------------------

    \7\ The term ``requirement'' as used in this policy means a 
legally binding requirement such as a statute, regulation, license 
condition, technical specification, or order.
---------------------------------------------------------------------------

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 risk-informed 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

[[Page 25374]]

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.
---------------------------------------------------------------------------

    \8\ The 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.
---------------------------------------------------------------------------

    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;

[[Page 25375]]

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.
---------------------------------------------------------------------------

    \9\ Regulatory concern pertains to primary NRC regulatory 
responsibilities, i.e., safety, safeguards, and the environment.
---------------------------------------------------------------------------

    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.

[[Page 25376]]

    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

[[Page 25377]]

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.
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    \10\ A 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.

    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\
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    \11\ An 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.
---------------------------------------------------------------------------

    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

[[Page 25378]]

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        55,000
 quantities of SNM............................................
c. Fuel fabricators, industrial processors,\1\ and independent    27,500
 spent fuel and monitored retrievable storage installations...
d. Test reactors, mills and uranium conversion facilities,        11,000
 contractors, waste disposal licensees, industrial
 radiographers, and other large material users................
e. Research reactors, academic, medical, or other small           5,500
 material users\2\............................................
------------------------------------------------------------------------
\1\ Large firms engaged in manufacturing or distribution of byproduct,
  source, or special nuclear material.
\2\ This applies to nonprofit institutions not otherwise categorized in
  this table, mobile nuclear services, nuclear pharmacies, and physician
  offices.


                     Table 1B.--Base Civil Penalties
------------------------------------------------------------------------
                                                     Base civil penalty
                                                    amount  (percent of
                  Severity level                      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.

[[Page 25379]]

[GRAPHIC] [TIFF OMITTED] TN01MY00.000

a. Initial Escalated Action
    When the NRC determines that a non-willful 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\
---------------------------------------------------------------------------

    \12\ An ``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 licensee-identified; however, if the 
same dosimetry readings disclosed an overexposure, the issue would 
be considered an event.
---------------------------------------------------------------------------

    (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 
self-monitoring 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 time-period 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 self-monitoring 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

[[Page 25380]]

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 
NRC-identified, 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 NRC-identified, 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

[[Page 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

[[Page 25382]]

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 non-licensees 
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 risk-
significant 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:
---------------------------------------------------------------------------

    \13\ The 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.

---------------------------------------------------------------------------

[[Page 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

[[Page 25384]]

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

[[Page 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:
    <bullet> Inadvertent individual mistakes resulting from inadequate 
training or guidance provided by the facility licensee.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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:
    <bullet> Willfully causing a licensee to be in violation of NRC 
requirements.
    <bullet> 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.
    <bullet> Recognizing a violation of procedural requirements and 
willfully not taking corrective action.
    <bullet> Willfully defeating alarms which have safety significance.
    <bullet> Unauthorized abandoning of reactor controls.
    <bullet> Dereliction of duty.
    <bullet> Falsifying records required by NRC regulations or by the 
facility license.
    <bullet> 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.
    <bullet> Willfully withholding safety significant information 
rather than making such information known to appropriate supervisory or 
technical personnel in the licensee's organization.
    <bullet> Submitting false information and as a result gaining 
unescorted access to a nuclear power plant.
    <bullet> 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.
    <bullet> Willfully providing false certification that components 
meet the requirements of their intended use, such as ASME Code.
    <bullet> Willfully supplying, by contractors of equipment for 
transportation of radioactive material, casks that do not comply with 
their certificates of compliance.
    <bullet> Willfully performing unauthorized bypassing of required 
reactor or other facility safety systems.
    <bullet> 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

[[Page 25386]]

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.
---------------------------------------------------------------------------

    \14\ Except 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.
---------------------------------------------------------------------------

    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:
    <bullet> 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.
    <bullet> Require notification to the NRC before resuming work in 
licensed activities.
    <bullet> 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-for-duty 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-for-duty, 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 case-by-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

[[Page 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 Non-Licensees

    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

[[Page 25388]]

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;
---------------------------------------------------------------------------

    \15\ The 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.
---------------------------------------------------------------------------

    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 high-pressure 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

[[Page 25389]]

satisfied their intended safety related purpose.
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    \17\ The term ``completed'' as used in this supplement means 
completion of construction including review and acceptance by the 
construction QA organization.
---------------------------------------------------------------------------

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
---------------------------------------------------------------------------

    \18\ See 10 CFR 73.2 for the definition of ``formula quantity.''
---------------------------------------------------------------------------

    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;
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    \19\ The 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.
    \20\ The phrase ``vital area'' as used in this supplement 
includes vital areas and material access.
---------------------------------------------------------------------------

    2. The theft, loss or diversion of SNM of moderate strategic 
significance \21\ in which the security system did not function as 
required; or
---------------------------------------------------------------------------

    \21\ See 10 CFR.73.2 for the definition of ``special nuclear 
material of moderate strategic significance.''
---------------------------------------------------------------------------

    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;
---------------------------------------------------------------------------

    \22\ In determining whether access can be easily gained, factors 
such as predictability, identifiability, and ease of passage should 
be considered.
---------------------------------------------------------------------------

    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.

[[Page 25390]]

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\
---------------------------------------------------------------------------

    \23\ Personnel overexposures and associated violations incurred 
during a life-saving or other emergency response effort will be 
treated on a case-by-case basis.
---------------------------------------------------------------------------

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 
Sec. 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 Sec. 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 Sec. 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 Sec. 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

[[Page 25391]]

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\
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    \24\ Some 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.
---------------------------------------------------------------------------

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 UF<INF>6</INF> 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;

[[Page 25392]]

    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 off-scale, 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;
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    \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.
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    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\
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    \26\ The example for violations for fitness-for-duty relate to 
violations of 10 CFR Part 26.

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[[Page 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-the-counter 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-for-duty 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-for-duty 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

[[Page 25394]]

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 Y2K-
related 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

[[Page 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