[Federal Register Volume 61, Number 238 (Tuesday, December 10, 1996)]
[Notices]
[Pages 65088-65092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31319]
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NUCLEAR REGULATORY COMMISSION
Policy and Procedure for Enforcement Actions; Policy Statement
AGENCY: Nuclear Regulatory Commission.
ACTION: Policy statement: Revision.
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SUMMARY: The Nuclear Regulatory Commission (NRC or Commission) is
amending its General Statement of Policy and Procedure for Enforcement
Actions (Enforcement Policy) to revise the list of enforcement matters
on which the NRC staff must consult with the Commission, to modify the
Policy to provide that most predecisional enforcement conferences will
be open to public observation, to clarify the circumstances in which a
licensee-identified violation will be treated as a non-cited violation,
and consideration of risk in developing sanctions.
DATES: This revision is effective on December 10, 1996. Comments are
due on or before January 9, 1997. The change to Part V of the
Enforcement Policy concerning open predecisional enforcement
conferences does not apply to conferences that were announced prior to
the effective date of this revision.
ADDRESSES: Send written comments to: The Secretary of the Commission,
U.S. Nuclear Regulatory Commission, Washington, DC 20555, ATTN:
Docketing and Service Branch. Deliver comments to: 11555 Rockville
Pike, Rockville, Maryland 20852, between 7:45 am and 4:15 pm, on
Federal workdays. Copies of comments may be examined at the NRC Public
Document Room, 2120 L Street, NW. (Lower-Level), Washington, DC.
FOR FURTHER INFORMATION CONTACT: James Lieberman, Director, Office of
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555
(301) 415-2741.
SUPPLEMENTARY INFORMATION: The ``General Statement of Policy and
Procedure for NRC Enforcement Actions'' (Enforcement Policy or Policy)
was first issued on September 4, 1980. Since that time, the Enforcement
Policy has been revised on a number of occasions. On June 30, 1995 (60
FR 34381), the Enforcement Policy was revised in its entirety and was
also published as NUREG-1600. The Policy primarily addresses violations
by licensees and certain non-licensed persons, as discussed further in
footnote 3 to Section I, Introduction and Purpose, and in Section X:
Enforcement Action Against Non-licensees. As described below, the
Commission is amending the Enforcement Policy to address issues
regarding consultation with the Commission, open predecisional
enforcement conferences, non-cited violations, and risk-significant
violations.
Commission Consultation
Most enforcement decisions are made at the NRC staff level.
However, based on guidance in Section III of the Enforcement Policy
``Responsibilities,'' certain cases require formal Commission
consultation. The practice of Commission consultation has existed since
the Enforcement Policy was first published as an interim Policy in
1980. After 1980, the number of cases requiring this type of
consultation has more than doubled. Most of the criteria for
consultation were adopted many years ago, to address particular
[[Page 65089]]
Commissioner concerns or areas where the NRC staff had little
experience. The NRC staff has had substantial experience in
implementing the objectives of the Enforcement Policy. It is relatively
rare that the Commission deviates from the recommended NRC staff
approach. Thus, there is less need for mandatory Commission involvement
in many enforcement matters.
Based on these factors and considering the significant effort
currently expended in providing Commission consultation on enforcement
matters, the Commission has given the NRC staff more flexibility to
decide what enforcement issues should be brought to the Commission's
attention because of policy significance, controversy, or known
Commission interest.
Section III of the Enforcement Policy is being modified to delete
the specific requirements for consultation with the Commission before
the NRC staff issues enforcement actions involving material false
statements, orders or civil penalties to unlicensed individuals, or
civil penalties to licensed reactor operators. Because of the egregious
nature of material false statement cases, it is logical that they would
be considered very significant regulatory concerns and be categorized
at Severity Level I and require Commission consultation on that basis
(Section III(3) of the Enforcement Policy). The Commission believes
that consultation regarding individual actions should be based on the
merits of the particular case. Further, under the current Policy, civil
penalties are not normally issued to unlicensed individuals or
operators. These cases would receive Commission consultation at the
request of the Executive Director for Operations (EDO). The Commission
receives advance notification of all orders, including those issued to
unlicensed individuals.
In addition, consultation will no longer be required when the NRC
staff exercises discretion under Section VII.B.2 1 and refrains
from taking enforcement action for certain violations identified during
extended shutdowns. The Commission will receive advance notification
through Enforcement Notifications (ENs) for the first exercise of
discretion for a plant meeting the criteria of Section VII.B.2.
Notification, not consultation, will be required when the NRC staff
exercises discretion under Section VII.A.1 in matters in which the
civil penalty to be proposed deviates from more than two times the
amount of the base civil penalty. However, item (2) of Section III of
the Policy is being clarified to require consultation when the NRC
staff proposes a civil penalty greater than 3 times the Severity Level
I values shown in Table 1A for a single violation or problem. The NRC
staff will continue to provide notification to the Commission for all
civil penalties and orders.
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\1\ After the issuance of NUREG-1525, Section VII.B.3 of the
Enforcement Policy was renumbered as Section VII.B.2.
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Predecisional Enforcement Conferences
Historically, the Enforcement Policy has provided that enforcement
conferences are closed meetings between the NRC and licensees to
exchange information on potential safety issues. Section V of the
current Enforcement Policy states that conferences, ``are not normally
open to the public observation.'' However, on July 10, 1992, the
Commission established a 2-year trial program to determine if the
Policy should be changed to make most enforcement conferences open to
the public. On July 19, 1994, the NRC announced that the trial program
would be continued until the Commission had acted on the enforcement
review team's recommendations.
The announcement of the trial program explained that the
Commission's decision on whether to establish a permanent policy for
making enforcement conferences open would be based on an assessment of
the following criteria:
(1) Whether the fact that the conference was open impacted the
NRC's ability to conduct a meaningful conference and/or implement the
NRC's enforcement program;
(2) Whether the open conference impacted the licensee's
participation in the conference;
(3) Whether the NRC expended a significant amount of resources in
making the conference public; and
(4) The extent of public interest in opening the enforcement
conference.
Under the trial program, approximately 25 percent of all eligible
enforcement conferences were open to public observation. Open
enforcement conferences were conducted in each regional office and with
various types of licensees. Members of the public attended 40 of the
113 open conferences conducted. In most cases, three or fewer members
of the public attended. The Commission received and evaluated comments
from licensees and members of the public.
The most significant concern in allowing public observation at
enforcement conferences was that open conferences could inhibit open
and candid discussions between the NRC and licensees, limit the free
exchange of information, reduce conference effectiveness, and
negatively impact the enforcement program. Although industry reiterated
this concern during the trial program, the Commission has not found
that open enforcement conferences conducted during the trial program
were substantially less frank and open, nor was the NRC prevented from
obtaining the information required to implement its enforcement
program. In some cases, the NRC staff needed to ask licensees
additional questions, but the information ultimately provided was
always sufficient to meet predecisional enforcement conference goals.
Opening predecisional enforcement conferences is consistent with
the agency's principles of good regulation and normal agency policy
(``Staff Meetings Open to the Public; Final Policy Statement,'' 59 FR
48340; September 20, 1994). The intent of open conferences is not to
maximize public attendance, but to provide the public with an
opportunity to observe the regulatory process. Although making highly
technical meetings open to the public exposes participants to the risk
that information may be misunderstood or misconstrued, the Commission
does not find that the risk outweighs the public confidence gained by
allowing open observation of NRC predecisional enforcement conferences.
After considering the impact on the NRC's ability to exercise its
regulatory and safety responsibilities, the impact on the candor and
openness of communications during enforcement conferences, the impact
on NRC resources, and the benefit to the public, the Commission has
decided to modify the Enforcement Policy to provide that most
conferences will be open to public observation. However, as for any
public meeting, the NRC retains the discretion to close the conference
for a specific case. The criteria for closing conferences are currently
addressed in Section V of the Enforcement Policy. With two additions,
these criteria will continue to be used. The changes involve opening a
conference if it is based on an NRC Office of Investigations (OI)
report that has been publicly disclosed and providing flexibility to
open or close a conference with the approval of the Executive Director
for Operations. The Enforcement Policy will continue to emphasize that
predecisional enforcement conferences are open for public observation
and not participation consistent with the NRC's policy on open
meetings. The change to the Enforcement Policy that opens predecisional
enforcement conferences
[[Page 65090]]
will be applied to conferences for which the date is announced after
the effective date of this revision.
Non-Cited Violations
The Enforcement Policy provides examples of when discretion
generally should be considered for departing from the normal approach
under the Policy. Section VII.B.1. addresses non-cited violations
(NCVs) which are used to recognize the existence of a legal violation
but are not formal violations. NCVs are used to provide an incentive to
licensees to identify and correct violations. Criterion 1.(a). in
Section VII.B.1. is a Severity Level IV violation that was ``identified
by the licensee, including identification through an event.''
This discretion is normally used when the licensee identifies and
corrects a non-recurring violation. However, this provision is not
normally used for violations that meet the criteria for Severity Level
III violations, and where the circumstances justify characterization at
Severity Level IV. Such cases normally are the more significant
Severity Level IV violations. In addition, the NRC has considered
whether this exercise of discretion should normally be used in cases
involving violations identified through an event. If 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, the licensee should not be rewarded by the NRC's exercising
discretion not to cite the violation. On the other hand, there may be
cases when, notwithstanding a self-disclosing violation, the licensee
demonstrated initiative in identifying the violation's root cause. In
such a case, an NCV may be appropriate.
In general, when the licensee's identification is through an event,
discretion should only be exercised when the licensee has demonstrated
initiative. Further, the violation should be cited if it caused the
event, the cause is obvious, or a clear opportunity existed to identify
the violation and take action to prevent the event. The Commission
believes that the Enforcement Policy should be clarified by deleting
the reference to identification through an event in the criterion in
Section VII.B.1.(a) to make it clear that use of discretion is not
automatic if the violation is identified through a self-disclosing
event.
Risk-significant Violations
In evaluating violations for enforcement, the higher the risk from
a violation, the greater the severity level and sanction should be.
However, the converse is not necessarily true; low risk should not
necessarily result in no sanction or a minor violation being cited.
This is because many violations, although having low risk significance,
may indicate a broader problem, often indicative of a programmatic
licensee failure to comply with NRC requirements and, therefore, have a
high regulatory significance.
The Enforcement Policy currently does not address risk explicitly,
except in Section VII.A.1.e, which addresses the escalation of
enforcement sanctions in situations when the excessive duration of a
problem has resulted in a substantial increase in risk. Although there
is inherent discretion in the Enforcement Policy to increase Severity
Levels and sanctions based on risk, the Commission believes it is
appropriate to modify the Policy to state the consideration of risk
aspects more clearly.
In analyzing risk, the NRC recognizes the uncertainties associated
with risk assessment. Generally, qualitative rather than quantitative
risk assessments are made given the number of variables associated with
risk assessment. Risk should be a consideration in proposing
enforcement actions, but not necessarily determinatative. In developing
higher civil penalties, the Commission intends to consider, where
appropriate, assessing separate civil penalties for each violation that
is aggregated into a Severity Level II problem.
Therefore, to provide sufficient discretion to be able to
appropriately consider risk in enforcement decisions, Section IV of the
Policy is being modified to state that in considering the significance
of a violation, the NRC considers the technical significance, i.e.,
actual and potential consequences, and the regulatory significance; and
that in evaluating the technical significance, risk is an appropriate
consideration. Further, Section VII.A.1.(e) is being modified to state
that exercise of discretion should be considered in situations where
the violation has resulted in a substantial increase in risk, including
cases in which the duration of the violation has contributed to the
substantial increase.
Paperwork Reduction Act Statement
This 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 3150-0011. The
approved information collection requirements contained in this policy
statement appear in Section VII.C.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
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 of OMB.
Accordingly, the NRC Enforcement Policy is amended by revising
Section III, the first paragraph in Section IV, Section V, and Sections
VII.A.1.(e) and VII.B.1(a) to read as follows:
GENERAL STATEMENT OF POLICY AND PROCEDURE FOR NRC ENFORCEMENT ACTIONS
* * * * *
III. Responsibilities
The Executive Director for Operations (EDO) and the principal
enforcement officers of the NRC, the Deputy Executive Director for
Nuclear Material Safety, Safeguards and Operations Support (DEDS), and
the Deputy Executive Director for Nuclear Reactor Regulation, Regional
Operations, and Research (DEDR), have been delegated the authority to
approve or issue all escalated enforcement actions.4 The DEDS is
responsible to the EDO for the NRC enforcement programs. The Office of
Enforcement (OE) exercises oversight of and implements the NRC
enforcement programs. The Director, OE, acts for the Deputy Executive
Directors in enforcement matters in their absence or as delegated.
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\4\ 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) 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 appropriate Deputy Executive Director, where necessary, the
regional offices normally issue Notices of Violation and proposed 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.
[[Page 65091]]
Enforcement orders are normally issued by a 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
Director, Office of the Controller, 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 technical
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
Enforcement Discretion.'' The Commission will be provided written
notification of all enforcement actions involving civil penalties or
orders. The Commission will also be provided notice the first time that
discretion is exercised for a plant meeting the criteria of Section
VII.B.2. In addition, 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 with the potential radiological or other
hazards associated with continued operation;
(2) Proposals to impose a civil penalty greater than 3 times the
Severity Level I values shown in Table 1A for a single violation or
problem;
(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. Severity of Violations
Regulatory requirements 5 have varying degrees of safety,
safeguards, or environmental significance. Therefore, the relative
importance of each violation, including both the technical significance
and the regulatory significance, is evaluated as the first step in the
enforcement process. In considering the significance of a violation,
the staff considers the technical significance, i.e., actual and
potential consequences, and the regulatory significance. In evaluating
the technical significance, risk is an appropriate consideration.
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\5\ The term ``requirement'' as used in this policy means a
legally binding requirement such as a statute, regulation, license
condition, technical specification, or order.
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* * * * *
V. Predecisional Enforcement Conferences
Whenever the NRC has learned of the existence of a potential
violation for which escalated enforcement action appears to be
warranted, or recurring nonconformance on the part of a vendor, the NRC
may provide an opportunity for a predecisional enforcement conference
with the licensee, vendor, or other person before taking enforcement
action. The purpose of the 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 action taken or planned, and (3) a common
understanding of the significance of issues and the need for lasting
comprehensive corrective action.
If the NRC concludes that it has sufficient information to make an
informed enforcement decision, a conference will not normally be held
unless the licensee requests it. However, an opportunity for a
conference will normally be provided before issuing an order based on a
violation of the rule on Deliberate Misconduct or a civil penalty to an
unlicensed person. If a conference is not held, the licensee will
normally be requested to provide a written response to an inspection
report, if issued, as to the licensee's views on the apparent
violations and their root causes and a description of planned or
implemented corrective action.
During the predecisional enforcement conference, the licensee,
vendor, 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, vendors, 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. Conferences will not
normally be open to the public if the enforcement action 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.
Notwithstanding meeting any of these criteria, a conference may
still be open if the conference involves issues related to an ongoing
adjudicatory proceeding with one or more intervenors 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 above normal criteria for opening or closing
conferences, with the approval of the Executive Director for
Operations, conferences may either be open or closed to the public
after balancing the benefit of the public observation against
[[Page 65092]]
the potential impact on the agency's decision-making process in a
particular case.
The NRC will notify the licensee that the conference will be open
to public observation. Consistent with the agency's policy on open
meetings, ``Staff Meetings Open to Public,'' published September 20,
1994 (59 FR 48340), the NRC intends to announce open conferences
normally at least 10 working days in advance of conferences through (1)
notices posted in the Public Document Room, (2) a toll-free telephone
recording at 800-952-9674, (3) a toll-free electronic bulletin board at
800-952-9676, and on the World Wide Web at the NRC Office of
Enforcement homepage (www.nrc.gov/OE). In addition, the NRC normally
will also 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 conferences may observe but not
participate in the conference. It is noted that 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.
Members of the public attending open 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.
VII. Exercise of Discretion
* * * * *
A. Escalation of Enforcement Sanctions
* * * * *
1. * * *
(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;
* * * * *
B. Mitigation of Enforcement Sanctions
* * * * *
1. Licensee-Identified Severity Level IV Violations. The NRC, with
the approval of the Regional Administrator or his or her designee, may
refrain from issuing a Notice of Violation for a Severity Level IV
violation that is documented in an inspection report (or official field
notes for some material cases) and described therein as a Non-Cited
Violation (NCV) provided that the inspection report includes a brief
description of the corrective action and that the violation meets all
of the following criteria:
(a) It was identified by the licensee;
* * * * *
Dated at Rockville, MD, this 4th day of December, 1996.
For the Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 96-31319 Filed 12-9-96; 8:45 am]
BILLING CODE 7590-01-P
