Enforcement of Regulatory Guides
See the memorandum from D. Thompson to J. P. O'Reilly (and others) dated February 17, 1977.
OELD advises that if licensee Regulatory Guides state that the intent of the Regulatory Guide will be accomplished or that the licensee will generally follow the guide, IE can not enforce against such statements except in rare cases where conditions of noncompliance are obvious.
Problems with enforcement have been encountered by Regions with respect to licensees committing to Regulatory Guides in Safety Analysis Reports or security plans in such a manner as to be not legally binding. Licensees may state in their plan that they will accomplish certain functions according to the "intent" of a Regulatory Guide.
The "intent" of the Guide, and whether the licensee met the "intent", may be subject to interpretation by inspectors and licensees. The Executive Legal Director advises that if a licensee states in their plan that the "intent" of the guide will be accomplished, or that they will "generally" follow the guide, enforcement against such loosely worded statements can not be made except when conditions of noncompliance are clearly obvious.
Enforcement can be made against those sections of the Regulatory Guides referenced in the Regulations as "shall", but enforcement can not be made against those sections which are recommended "should" or allowed as optional "may". The position of IE and the Legal Staff is that Licensing should assure that those functions which the licensee must perform be stated clearly in the requirement to assure that they are enforceable.
Therefore, the Regulatory Guides should adopt standard terms such as "shall" be accomplished (meaning required), "should" be accomplished (meaning recommended), and "may" be accomplished (permissive). Such licensing functions, however, will likely require legal review. It is requested that specific matters involving enforcement problems encountered during inspections be forwarded to IE Headquarters so that they can be brought to the attention of Licensing.
Regulatory references: Regulatory Guides
Subject codes: 12.7