United States Nuclear Regulatory Commission - Protecting People and the Environment

U.S. Nuclear Regulatory Commission

Enforcement of Regulatory Guides

HPPOS-113 PDR-9111210260

Title: 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

Applicability: Reactors

Page Last Reviewed/Updated Thursday, March 29, 2012