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Revision of the NRC Enforcement Policy - May 1, 2000

[Federal Register: May 1, 2000 (Volume 65, Number 84)]
[Notices]
[Page 25368-25395]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01my00-88]

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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
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://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.

[[Page 25372]]

    The primary purpose of the NRC's Enforcement Policy is to support
the NRC's overall safety mission in protecting the public health and
safety and the environment. Consistent with that purpose, the policy
endeavors to:
     Deter noncompliance by emphasizing the importance of
compliance with NRC requirements, and
     Encourage prompt identification and prompt, comprehensive
correction of violations of NRC requirements.
    Therefore, licensees,\4\ contractors,\5\ and their employees who do
not achieve the high standard of compliance which the NRC expects will
be subject to enforcement sanctions. Each enforcement action is
dependent on the circumstances of the case. However, in no case will
licensees who cannot achieve and maintain adequate levels of safety be
permitted to continue to conduct licensed activities.
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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
(http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.nrc.gov/OE)
and on the Public Meeting Web site
(http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://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.
---------------------------------------------------------------------------

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

    \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.

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[[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:
     Inadvertent individual mistakes resulting from inadequate
training or guidance provided by the facility licensee.
     Inadvertently missing an insignificant procedural
requirement when the action is routine, fairly uncomplicated, and there
is no unusual circumstance indicating that the procedures should be
referred to and followed step-by-step.
     Compliance with an express direction of management, such
as the Shift Supervisor or Plant Manager, resulted in a violation
unless the individual did not express his or her concern or objection
to the direction.
     Individual error directly resulting from following the
technical advice of an expert unless the advise was clearly
unreasonable and the licensed individual should have recognized it as
such.
     Violations resulting from inadequate procedures unless the
individual used a faulty procedure knowing it was faulty and had not
attempted to get the procedure corrected.
    Listed below are examples of situations which could result in
enforcement actions involving individuals, licensed or unlicensed. If
the actions described in these examples are taken by a licensed
operator or taken deliberately by an unlicensed individual, enforcement
action may be taken directly against the individual. However,
violations involving willful conduct not amounting to deliberate action
by an unlicensed individual in these situations may result in
enforcement action against a licensee that may impact an individual.
The situations include, but are not limited to, violations that
involve:
     Willfully causing a licensee to be in violation of NRC
requirements.
     Willfully taking action that would have caused a licensee
to be in violation of NRC requirements but the action did not do so
because it was detected and corrective action was taken.
     Recognizing a violation of procedural requirements and
willfully not taking corrective action.
     Willfully defeating alarms which have safety significance.
     Unauthorized abandoning of reactor controls.
     Dereliction of duty.
     Falsifying records required by NRC regulations or by the
facility license.
     Willfully providing, or causing a licensee to provide, an
NRC inspector or investigator with inaccurate or incomplete information
on a matter material to the NRC.
     Willfully withholding safety significant information
rather than making such information known to appropriate supervisory or
technical personnel in the licensee's organization.
     Submitting false information and as a result gaining
unescorted access to a nuclear power plant.
     Willfully providing false data to a licensee by a
contractor or other person who provides test or other services, when
the data affects the licensee's compliance with 10 CFR Part 50,
Appendix B, or other regulatory requirement.
     Willfully providing false certification that components
meet the requirements of their intended use, such as ASME Code.
     Willfully supplying, by contractors of equipment for
transportation of radioactive material, casks that do not comply with
their certificates of compliance.
     Willfully performing unauthorized bypassing of required
reactor or other facility safety systems.
     Willfully taking actions that violate Technical
Specification Limiting Conditions for Operation or other license
conditions (enforcement action for a willful violation will not be
taken if that violation is the result of action taken following the
NRC's decision to forego enforcement of the Technical Specification or
other license condition or if the operator meets the requirements of 10
CFR 50.54(x), (i.e., unless the operator acted unreasonably considering
all the relevant circumstances surrounding the emergency.)
    Normally, some enforcement action is taken against a licensee for
violations caused by significant acts of wrongdoing by its employees,
contractors, or contractors' employees. In deciding whether to issue an
enforcement action to an unlicensed person as well as to the licensee,
the NRC recognizes that judgments will have to be made on a case by
case basis. In making these decisions, the NRC will consider factors
such as the following:
    1. The level of the individual within the organization.
    2. The individual's training and experience as well as knowledge of
the

[[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.
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    \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.
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    Orders to NRC-licensed reactor operators may involve suspension for
a specified period, modification, or revocation of their individual
licenses. Orders to unlicensed individuals might include provisions
that would:
     Prohibit involvement in NRC licensed activities for a
specified period of time (normally the period of suspension would not
exceed 5 years) or until certain conditions are satisfied, e.g.,
completing specified training or meeting certain qualifications.
     Require notification to the NRC before resuming work in
licensed activities.
     Require the person to tell a prospective employer or
customer engaged in licensed activities that the person has been
subject to an NRC order.
    In the case of a licensed operator's failure to meet applicable
fitness-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.
---------------------------------------------------------------------------

    \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;
---------------------------------------------------------------------------

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

    \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 UF6 cylinder by unapproved methods).

C. Severity Level III--Violations Involving for Example

    1. Possession or use of unauthorized equipment or materials in the
conduct of licensee activities which degrades safety;
    2. Use of radioactive material on humans where such use is not
authorized;
    3. Conduct of licensed activities by a technically unqualified or
uncertified person;
    4. A substantial potential for exposures, radiation levels,
contamination levels, or releases, including releases of toxic material
caused by a failure to comply with NRC regulations, from licensed or
certified activities in excess of regulatory limits;

[[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.
---------------------------------------------------------------------------

    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

Page Last Reviewed/Updated Tuesday, February 18, 2014