[Federal Register Volume 59, Number 162 (Tuesday, August 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20618]
[[Page Unknown]]
[Federal Register: August 23, 1994]
VOL. 59, NO. 162
Tuesday, August 23, 1994
NUCLEAR REGULATORY COMMISSION
10 CFR Part 2
Reexamination of the NRC Enforcement Policy
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule; Request for public comment.
-----------------------------------------------------------------------
SUMMARY: The Nuclear Regulatory Commission (NRC) is reexamining its
enforcement program and requests public comment on whether the scope,
purpose, procedures, and methods of its enforcement program are
appropriate, and how they may be improved. The NRC is soliciting
comments from interested public interest groups, the regulated
industry, states, and concerned citizens. Comments from both reactor
and materials licensees are requested. This request is intended to
assist the NRC in a review of its enforcement program which is being
conducted to make recommendations for improvements in the regulatory
process.
DATES: The comment period expires October 24, 1994. Comments received
after this date will be considered if it is practical to do so, but the
Commission is able to assure consideration only for comments received
on or before this date.
ADDRESSES: Submit written comments to: David Meyer, Chief, Rules Review
and Directives Branch, Division of Freedom of Information and
Publication Services, Office of Administration, Mail Stop: T6D59, U.S.
Nuclear Regulatory Commission, Washington, DC 20555. Hand deliver
comments to: 11555 Rockville Pike, Rockville, Maryland, between 7:45 am
and 4:15 pm, Federal workdays. Copies of comments received may be
examined at the NRC Public Document Room, 2120 L Street NW. (Lower
Level), Washington, DC. After September 1, 1994, it is expected that
comments may also be provided electronically by accessing the NRC
bulletin board system (BBS) that is a subsystem of FedWorld, which is
operated by the National Technical Information Service. The NRC BBS can
be accessed directly by a toll free number, (800) 303-9672, at modem
speeds up to 9600 Baud with communication parameters set at 8 data
bits, no parity, 1 stop bit, full duplex, and ANSI terminal emulation.
Select the ``Subsystems/Databases'' option from the ``NRC Main Menu''
and then the ``Enforcement Program'' option. The ``Help/Information
Center'' from the ``Enforcement Program Menu'' provides selections on
``Request for Comments on the Enforcement Policy'' and ``How to Leave
an Official Comment.'' The NRC BBS can also be accessed from the
FedWorld ``Subsystems/Databases'' menu, which could facilitate user
access using the Internet. FedWorld's access via Internet is Telnet
access: fedworld.gov (192.239.92.3); FTP site access: ftp.fedworld.gov
(192.239.92.205), and World Wide Web (Home Page): www.fedworld.gov
(this is the URL).
FOR FURTHER INFORMATION CONTACT: James Lieberman, Director, Office of
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
(301) 504-2741. Questions on the NRC BBS may be directed to Tom Dunning
at (301) 504-1189.
SUPPLEMENTARY INFORMATION: On May 13, 1994, the Executive Director for
Operations directed a Review team composed of Senior NRC managers to
reexamine the NRC enforcement program. The Review Team is chaired by
James Lieberman, Director, Office of Enforcement, and includes James
Fitzgerald, Acting Director, Office of Investigations, Roy Zimmerman,
Associate Director for Projects, Office of Nuclear Reactor Regulations,
William Brach, Deputy Division Director, Division of Industrial and
Medical Nuclear Safety, Office of Nuclear Materials Safety and
Safeguards, Luis Reyes, Deputy Administrator Region II, and Jack
Goldberg, Deputy Assistant General Counsel for Enforcement.
The purpose of this review effort is to (i) perform an assessment
of the NRC's enforcement program to determine whether the defined
purposes of the enforcement program are appropriate, (ii) determine
whether the NRC's enforcement practices and procedures for issuing
enforcement actions are consistent with those purposes, and (iii)
provide recommendations on any changes the Review Team believes
advisable. It is expected that the Review Team will complete its review
and issue its report, including recommendations, by the end of January
1995.
The NRC's enforcement program is guided by the Commission's
``General Statement of Policy and Procedure for NRC Enforcement
Actions'' (Enforcement Policy). The Enforcement Policy is published in
the Code of Federal Regulations at 10 CFR part 2, appendix C to provide
widespread dissemination of the Commission's Enforcement Policy.
However, it is a policy statement and not a regulation. The Enforcement
Policy notes that the Commission, as appropriate under the circumstance
of a particular case, can deviate from it.
The Commission's Enforcement Policy was first published in 1980 as
an interim policy. 45 FR 66754 (October 7, 1980). On March 9, 1982 (47
FR 9987), the Commission published a final version of the policy. Since
that time, the Enforcement Policy has been modified on a number of
occasions to address changing requirements and additional experience.
The current Enforcement Policy is reflected in the 1994 Code of Federal
Regulations as supplemented by a July 15, 1994 (59 FR 36026),
modification to provide additional severity level examples.
Since the Enforcement Policy was first promulgated, the purpose and
the four objectives for the NRC enforcement program have remained
essentially unchanged. Section I of the Enforcement Policy states that:
The purpose of the NRC enforcement program is to promote and
protect the radiological health and safety of the public, including
employees' health and safety, the common defense and security, and the
environment by [the following four objectives]:
Ensuring compliance with NRC regulations and license
conditions;
Obtaining prompt correction of violations and adverse
quality conditions which may affect safety;
Deterring future violations and occurrences of conditions
adverse to quality; and
Encouraging improvement of licensee and vendor
performance, and by example, that of industry, including the prompt
identification and reporting of potential safety problems.
In summary, the Enforcement Policy provides for a graduated set of
sanctions based on the severity of the violations. Normally, each
violation or grouping of violations is categorized into one of five
severity levels based on the relative importance of the violation,
including both the technical significance, i.e. the actual and
potential consequences, and the regulatory significance including any
willfulness associated with the violation. Formal sanctions include
Notices of Violations, civil penalties, and orders. In determining the
particular sanction to be used, consideration is given to (i) the
severity level of the violation, including its duration, (ii) the
licensee's response to the violation, including whether the licensee
identified the violation and corrected it, and (iii) the licensee's
past performance, including whether the violation was a recurring one,
the licensee's compliance history and general performance, and whether
there were prior opportunities to discover, correct, or avoid the
violation. The Enforcement Policy provides for the ability to exercise
discretion to increase or reduce sanctions (including dispositioning
certain violations as non-cited violations) to provide appropriate
regulatory messages to encourage improved performance. Enforcement
actions involving orders or violations at Severity Level I, II, or III
are considered more significant and are referred to as escalated
actions. In addition to formal enforcement sanctions, NRC also uses
administrative actions such as Demands for Information, Confirmatory
Action Letters, and Letters of Reprimand.
In accordance with its charter, the Review Team, is to consider,
but not be limited to, the following issues in conducting its
assessment of the enforcement program:
(i) The balance between providing deterrence and incentive (both
positive and negative) for the identification and correction of
violations,
(ii) The appropriateness of NRC sanctions,
(iii) Whether the Commission should seek statutory authority to
increase the amount of civil penalties,1
---------------------------------------------------------------------------
\1\In 1993, the Commission conducted a reassessment of the NRC's
program for protecting allegers against retaliation. The Review Team
which performed that reassessment recommended, among other things,
that the NRC should seek an amendment to section 234 of the Atomic
Energy Act of 1954 to increase the current maximum civil penalty of
$100,000 to $500,000 per day per violation to be normally used for
willful violations including those involving discrimination.
Recommendation II.D-3, ``Reassessment of the NRC's Program for
Protecting Allegers Against Retaliation,'' NUREG-1499 (January
1994). The Commission did not act on this recommendation, but
instead, the Commission approved a staff proposal to defer action on
the recommendation pending a review of the NRC Enforcement Program.
---------------------------------------------------------------------------
(iv) Whether there should be different enforcement policies and
practices for material licensees in contrast to power reactors or large
fuel facilities, and
(v) Whether the Commission should establish open enforcement
conferences as the normal practice.2
---------------------------------------------------------------------------
\2\In 1992, the NRC established a two-year trial program for
conducting enforcement conferences open to attendance by members of
the public (57 FR 30762, July 10,1992). This trial program was to
end July 11, 1994 upon which date comments were due on whether NRC
should routinely conduct open enforcement conferences. However, in
light of the reexamination of the enforcement program, the trial
program was extended pending the outcome of the enforcement program
review (59 FR 36796, July 19,1994).
---------------------------------------------------------------------------
Public comments are sought on these issues to assist the Review
Team in its reassessment. In addition to general comments on the above
issues, the Review Team seeks comments on a number of specific issues.
Comments are sought from both reactor and material licensees,
vendors, other persons who are subject to NRC enforcement jurisdiction,
state and local governments, and other members of the public who may
have an interest in NRC enforcement actions. Although the Review Team
is interested in as many comments as possible, commenters are not
obligated to and need not address every issue.
In providing comments, please key comments to the numbering system
used to identify the specific issues by providing the issue number
before the particular comment (e.g., Response to A.3). General or
anecdotal comments (such as a general comment to the effect that some
enforcement conferences have not been effective or that some
enforcement cases have been inconsistent with the Enforcement Policy)
will not be particularly useful. Rather comments should be as specific
as possible and should reference specific cases, as appropriate, so
that the Review Team can understand and evaluate the comment. Responses
which call for a ``yes'' or ``no'' answer should be accompanied with an
explanation as to why the commenter agrees or disagrees with the issue.
When the term licensee is used in the issues listed below, it refers,
as applicable, to licensees, vendors, and other persons subject to NRC
enforcement actions.
Comments may be provided in hard copy or through the NRC electronic
bulletin board( BBS). Instructions for accessing the NRC BBS are
provided in the ADDRESSES section above.
Following evaluation of the comments, the Review Team may hold a
public meeting in the Washington, D.C. area for the purpose of
clarifying comments. In that regard, commenters are requested to
indicate whether they would desire to participate in a public meeting.
It is expected that the Review Team would invite specific commenters to
participate on panels of commenters with similar views. If a meeting is
to be held, it will be announced in the Federal Register and on the NRC
BBS.
Comments are requested on the following specific issues:
A. Purpose and Objectives of the NRC Enforcement Program
1. Is the purpose of the enforcement program stated above the
proper area of focus for the NRC enforcement program? If not, why not
and what should the purpose be?
2. Are the four objectives of the NRC enforcement program stated
above (i.e., ensuring compliance, obtaining corrective action,
deterring future violations, and encouraging improved performance of
other licensees and vendors) appropriate? If not, why not and what
should the objectives be?
3. Does the enforcement program as implemented achieve the stated
purpose and objectives? Explain why or why not.
(a) Are enforcement sanctions effective in obtaining comprehensive
and lasting corrective action, i.e., does the time and effort spent in
developing responses to enforcement actions result in a more thought
out approach for corrective action and implementation of that action
than would otherwise occur?
(b) Do some types of sanctions result in more extensive,
comprehensive, or lasting corrective action than others?
(i) If so, which types of sanctions are more effective than others,
i.e., (a) Notices of Violation at Severity Level V, at Severity Level
IV with and without a civil penalty, at Severity Level III with and
without a civil penalty, at Severity Level II with and without a civil
penalty, and at Severity Level I with and without a civil penalty, and
(b) orders?
(ii) If so, why? For example, do some sanctions get more management
attention than others, i.e., do all senior licensee officials, such as
the Vice Presidents, President, Chief Executive Officer or Board of
Directors, get copies of every sanction including non-cited violations,
or do senior officials only get copies of certain types of sanctions
such as civil penalties or orders, or for that matter do they get
copies at any time?
(iii) If not, what changes could be made to improve corrective
action?
(c) Has the NRC's past use of sanctions created deterrence, i.e.,
does the threat of sanctions contribute to the desire to maintain
compliance?
(i) If not, what changes could be made to provide more deterrence?
(ii) Commenters are requested to address the deterrence value of
each type of sanction: (a) Notices of Violation at Severity Level V, at
Severity Level IV with and without a civil penalty, at Severity Level
III with and without a civil penalty, at Severity Level II with and
without a civil penalty, and at Severity Level I with and without a
civil penalty, and (b) orders.
(iii) To what extent does the issuance of press releases contribute
to the deterrence?
(iv) Should press releases be issued for Notices of Violation,
Confirmatory Action Letters, Demands for Information as well as civil
penalties and orders? If not, why not?
(d) Do NRC sanctions against particular licensees result in
improving the general performance of the regulated industry by
encouraging other licensees to take actions to prevent or identify and
correct similar violations at their facilities after learning of the
violations and sanctions imposed on other licensees?
(i) Licensee commenters should address whether they are normally
aware of enforcement actions issued against other licensees at the
level of (1) non-escalated Notices of Violations, (2) escalated Notices
of Violations without civil penalties, (3) civil penalties, and (4)
orders.
(ii) If commenters are aware of enforcement actions issued against
other licensees, how do they become aware of them (e.g, NUREG 0940,
``Enforcement Actions: Significant Actions Resolved,'' NRC Information
Notices, NMSS Newsletters, press releases, law firm news letters,
industry newsletters such as Inside NRC or Nucleonics Weekly, NRC
inspectors, Federal Register, or other sources)? Should NRC consider
better ways to provide licensees and vendors with information about NRC
enforcement actions such as use of an electronic bulletin board or an
enforcement newsletter?
(iii) If commenters are aware of enforcement actions issued against
other licensees, is the information from those actions used to improve
performance? How is it used to achieve better performance (e.g.,
discussed during staff meetings, incorporated into training, or made
the subject of required reading)?
4. Agency-wide (i.e., from region to region) consistency and
predictability in the nature and type of sanctions have been important
considerations in developing enforcement sanctions. As a result, the
Enforcement Policy has become substantially more detailed since the
initial policy was published in 1980. While flexibility is provided,
deviations from the norms of the Enforcement Policy require approval or
consultation with senior NRC officials, and in some cases, the
Commissioners.
(a) If the enforcement program as implemented does not provide an
appropriate degree of consistency and predictability, what are the
problem areas and what changes could be made for improvement in this
area?
(b) Should the Enforcement Policy be simplified and allow for more
staff judgement and issuance of enforcement actions with less
management review? If so, provide examples where changes could be made.
If so, why and how?
5. When developing enforcement sanctions, how should the NRC
attempt to balance punishment and incentives? [Note: this question
addresses issuance of sanctions in general, questions on issuance of
civil penalties are addressed in section E. of this notice.] Comments
are requested on whether the remedial value of enforcement would be
improved by:
(a) Basing sanctions solely on the occurrence of the violation and
its technical and regulatory significance to maximize the incentive to
discourage violations from occurring. Under this approach, in
formulating a sanction, NRC would consider whether the violation
occurred, but would not consider whether the licensee identified the
violation and corrected it and would not consider the licensee's past
performance, i.e., some or all sanctions would be issued somewhat like
a traffic ticket. For example, an overexposure would have a fixed
penalty for a given type of licensee. Commenters who favor this
approach should address the question of whether this approach would
tend to discourage licensees and employees from identifying violations
that are not self disclosing and broadly correcting violations as those
actions would not affect the sanction.
(b) Basing sanctions solely on the licensee's response to the
violation. Under this approach, NRC would not issue a sanction if the
licensee promptly identified, reported it if required, and promptly and
comprehensively corrected the violation; that is the NRC would not
consider past performance, duration, multiple occurrences, prior
opportunities to identify and correct the violation earlier if the
licensee identified and corrected the violation prior to NRC
identifying the violation, the NRC scheduling an announced inspection
in the area that encompasses the violation, or an event that disclosed
the violation. Commenters who favor this approach should address the
question of whether this approach would reduce the incentives to
identify violations, including responding to opportunities to identify
potential violations, or assuring lasting corrective action because the
licensee may take the risk that NRC might not identify the violation as
a result of the limited, audit nature of the NRC inspection program.
How should reporting of a violation be considered? For example, should
full mitigation be allowed if a violation was not reported?
(c) Basing sanctions on a combination of approaches (a) and (b)
above, similar to the current NRC approach. Commenters who favor this
approach should address which factors should be included in
establishing sanctions and the weight that might be appropriate for
each factor.
6. The Enforcement Policy is intended to provide regulatory
messages to improve performance such as encouraging identification of
violations, being responsive to information that may suggest the need
to take action to determine the existence of a violation, taking
prompt, comprehensive and lasting corrective action, and addressing
performance problems.
(a) Does the enforcement correspondence that transmits the
enforcement actions adequately convey the above messages?
(b) Does the enforcement correspondence that transmits the
enforcement actions adequately convey the significance the NRC places
on the violations, the areas where improvement in performance are
needed, and the reasons for the sanctions?
(c) Is the enforcement correspondence understandable? Should it be
simplified? If so, how?
7. Should there be different enforcement policies and procedures
(e.g., correspondence, enforcement conferences, inspection
documentation, civil penalty assessment factors) for large licensees,
such as power reactors and major fuel facilities, and for smaller
licensees? If so, how should the policies and procedures differ?
B. Severity Levels of Violations
Violations are normally categorized in terms of five levels of
severity to show their relative importance within a particular activity
area such as ``reactor operations'' or ``health physics.'' The level of
severity assigned is intended to be based on the violation's actual or
potential safety consequence and regulatory significance within the
selected activity area. Specific examples of severity levels for
particular violations are given in the Enforcement Policy supplements
to improve consistency and enhance the ability to apply the policy.
1. Should the NRC continue to use the existing severity levels to
categorize regulatory and safety significance of violations? If not,
why not and how should the Enforcement Policy be changed?
2. Is there a benefit to have both a Severity Level IV and V?
Should severity levels be used at all if violations are not associated
with a civil penalty?
3. Recognizing that not all violations are of equal significance,
are there sufficient examples to categorize the range of significance
of violations?
(a) Do the existing examples appropriately reflect significance? If
not, why not?
(b) If the existing examples are not sufficient, what other
examples should be included?
(c) Should the examples be revised to be more general? More
specific?
(d) Is sufficient flexibility provided to consider willfulness and
other circumstances? What circumstances not now considered should be
considered, if any, in establishing a severity level?
C. Enforcement Conferences
The Enforcement Policy provides that when the NRC learns of a
potential violation for which escalated enforcement action may be
warranted, the NRC normally provides the licensee an opportunity for an
enforcement conference prior to taking enforcement action. A conference
may also be held for a Severity Level IV violation if increased
management attention is warranted. The purpose of the conference is to
discuss the potential violations, their significance, the reason for
their occurrences including the root causes, and the licensee's
corrective actions. It provides NRC management an opportunity to
emphasize, directly with senior licensee management, the significance
of the violations and the need for effective lasting corrective action.
Also, the NRC uses the conference to determine whether there were any
aggravating or mitigating circumstances, and to obtain any other
information, including whether the licensee questions the findings of
the inspection, which may assist in determining the appropriate
enforcement action.
Enforcement conferences are not routinely open to the public.
(However, a trial program to open about 25 percent of the conferences
to the public is currently underway. See footnote 2)
1. Do enforcement conferences serve the purposes stated above? If
not, how can they be improved?
2. What are the benefits and weaknesses of conducting enforcement
conferences?
3. In deciding whether to hold a conference, should the NRC
consider whether the licensee desires to attend a conference?
4. Is the current criteria used to hold a conference appropriate?
If not, when should conferences be held?
5. Recognizing that apparent violations may be reconsidered
following an enforcement conference, should NRC continue the practice
of issuing inspection reports that address the apparent violations
prior to an enforcement conference?
6. Enforcement conferences are normally held in regional offices.
Should this continue, or should they be held closer to the facility of
the licensee?
7. As to open enforcement conferences:
(a) Have open enforcement conferences affected NRC performance
during the conference? If so, how?
(b) Have open enforcement conferences impacted the licensee's
participation in the conference? If so, how?
(c) Have open conferences impacted the licensees' cost of
participating at conferences? If so, how? If more preparation is
required, how substantial is that preparation and why should the
presence of public attendance impact the licensee's presentation?
(d) Has the public benefited from the ability to observe
enforcement conferences?
(e) Should all enforcement conferences be transcribed with the
transcript subsequently made public? For those who oppose open
conferences, would that be a viable alternative to open enforcement
conferences?
(f) The NRC staff in Rockville, Maryland frequently participates in
closed enforcement conferences held in the region by telephone.
(i) Is that appropriate for open conferences?
(ii) Should the public be allowed to listen by telephone to open
conferences?
(g) Should open enforcement conferences be made a permanent part of
the enforcement program?
8. Are there circumstances where a Demand for Information may be an
appropriate substitution for an enforcement conference? If so, what
circumstances should be considered?
D. Notices of Violations
The policy of the Commission has been to formalize the occurrence
of a violation by issuance of a Notice of Violation and by requiring
documented corrective action.
1. There are circumstances provided in the Enforcement Policy for
not issuing a formal notice of violation to provide incentives for
identification and corrective action for violations at Severity Level
IV, as well as to save both NRC and licensee resources for violations
at Severity Level V. In general where the licensee has identified a
non-recurring violation at Severity Level IV and taken appropriate
corrective action, the inspection finding is documented in the
inspection report and closed out as a ``non-cited violation,'' with no
written response required.
(a) Should the circumstances for use of non-cited violations be
changed to cover more situations or fewer (including different severity
levels)? If so, explain.
(b) Does the use of non-cited violations contribute to providing an
incentive for identifying and correcting violations or does it have the
same negative impact as a cited violation in a Notice of Violation?
(c) Should non-cited violations be treated any differently from a
cited violation when considering compliance history in the
deliberations on the appropriate regulatory response to a subsequent
violation? If so, explain.
(d) Should NRC continue to use non-cited violations?
(e) If non-cited violations should not be used in the future, how
should the NRC disposition findings in an inspection report that
provides sufficient detail to demonstrate that a violation occurred?
How should NRC track these findings and what should they be called?
2. Is there any purpose to issuing Notices of Violations at
Severity Level V? Should all such violations be treated as non-cited
violations?
3. Should all Notices of Violations require a written response? If
not, what should the documentation requirements be for corrective
action? What access rights should be given to the public to review the
documentation?
4. The materials program utilizes NRC Form 591, `` Safety
Inspections,'' which an inspector may use to document certain
violations and after the licensee signs the form stating that
corrective action will be taken within 30 days, serves as a Notice of
Violation. Form 591 is intended to be issued by the inspector directly
to the licensee without further agency review at the conclusion of the
inspection.
(a) Should this process be expanded to cover fuel cycle and reactor
licensees?
(b) Should this process be expanded to cover other enforcement
sanctions?
E. Civil Penalties
A civil penalty is a monetary penalty that may be imposed for
certain violations. Civil penalties are intended to emphasize the need
for lasting remedial action, and to deter future violations both by the
licensed party and by other licensees conducting similar activities.
The base civil penalty amounts have not been changed since the
early 1980's. To maintain a constant dollar amount for civil penalties,
adjustment for inflation would increase the current amounts by more
than 60 percent. For smaller licensees, a civil penalty may be a
deterrent because of the financial impact; for power reactor licensees,
the current civil penalty amounts are of little financial impact, but
may have a deterrent effect through the adverse publicity that attends
the issuance of a civil penalty.
1. Should civil penalties continue to be part of the NRC regulatory
process? If not, why not? How and when should they be used?
2. Have civil penalties been effective in improving compliance and
providing deterrence? If so, why? If not, why not?
3. The Review Team on Reassessment of the NRC's Program for
Protecting Allegers Against Retaliation concluded that higher civil
penalties are appropriate and recommended a statutory amount of
$500,000. The legislative history for section 234 of the Atomic Energy
Act does not provide a specific basis for the current statutory amount
of $100,000. The recommendation of that Review Team was based on the
average cost of a day of replacement power for a power reactor. The
recommended increase was intended to provide a more financially
relevant penalty and provide for a greater spread of penalty amounts
among the severity levels. (See, NUREG 1499 at page II.D-5-6)
(a) Given that significant violations continue to be identified,
and that civil penalties are intended to have a punitive aspect, would
higher civil penalties provide a greater incentive for compliance for
the larger licensees regulated by the Commission?
(b) Should the statutory amount of civil penalties be increased? If
so, to what extent? If not, why not?
(c) Since the civil penalty amount in Section 234 of the Atomic
Energy Act was last amended in 1980, there has been considerable
inflation. Should the base civil penalties be indexed for inflation?
(d) Should the civil penalty amount take into consideration the
costs associated with an enforcement action including the cost of the
investigation and processing the action?
4. Should the amount of the penalty be normally based solely on the
existence of the violation similar to a traffic ticket? If so, why? If
not, why not?
(a) If not, are there some violations such as overexposures to
workers, releases of radioactive material, exposures to members of the
public, failure to use survey instruments by radiographers, etc, where
civil penalties should be assessed without regard to adjustment
factors? If not, why not?
(b) Does it matter whether a penalty is increased or decreased from
the base amount, or is the existence of a penalty the controlling
factor?
5. Should the penalty consider contributing factors, such as the
root cause of or the licensee's response to the violation? If so, why?
If not, why not?
6. The current adjustment factors are designed to encourage good
performance (e.g., prompt identification, prompt and comprehensive
corrective action, and evidence of past lasting corrective action) and
deter poor performance (e.g., lack of identification and prompt or
comprehensive corrective action, not being responsive to opportunities
to identify violations, and not taking lasting corrective action). The
NRC expends considerable effort to adjust civil penalties to provide an
appropriate regulatory message.
(a) Should the current civil penalty adjustment factors continue to
be used? If not, why not and which factors should be deleted or what
factors should be added?
(b) Do the current adjustment factors provide the intended
incentives or deterrence? If not, please explain.
7. Comments are requested on the use of the specific factors.
(a) Should there be any mitigation for self-disclosing events where
the violation is relatively obvious, i.e., given the event, the
licensee really has no choice but to pursue it to determine the cause?
If not, why not? If so, why?
(b) Should mitigation be allowed for corrective action, if the
individuals responsible for the violations, assuming adequate
resources, training, procedures, and supervision, have not been
appropriately disciplined? How extensive should corrective action be to
permit mitigation?
(c) Since enforcement should be designed to influence performance,
should past poor performance be considered and cause penalties to be
increased if current performance is good, i.e., the licensee identifies
and corrects the particular violation assuming recent performance
(e.g., six months) has been good and there has not been a failure to be
responsive to opportunities of prior notice? Similarly, should past
good performance be considered and cause penalties to be lowered where
current performance is not good, i.e. the licensee does not identify
and corrects the violations?
(d) The Atomic Energy Act provides that each day a violation
continues shall be considered a separate violation for assessing a
civil penalty. The longer a violation exists the likelihood of a
consequence increases. Should duration be routinely considered if a
civil penalty would otherwise be assessed? If not, why not and how
should duration be factored into the amount of the penalty?
(e) Should prompt, comprehensive corrective action by the licensee
be sufficient to warrant full mitigation of the civil penalty,
regardless of the other factors such as prior performance, duration,
prior opportunities, and lack of identification or reporting?
(f) Should there be civil penalties if the licensee identifies and
promptly and comprehensively corrects a violation? If so, how should
factors such as repetitive violations, past poor performance, prior
opportunities to have identified the violation earlier, multiple
examples and duration be considered?
(g) Reporting is not currently considered as an assessment factor
and reporting failures are considered for enforcement separate and
apart from the matter not reported. How should reporting issues be
considered?
(i) Should there be full mitigation if a licensee identifies a
violation associated with a reportable matter, when the report is not
properly made?
(ii) Should reporting a violation be considered a separate
mitigating factor? If so, should mitigation be allowed where the matter
reported was required to be reported since not to do so would be a
separate violation subject to a separate sanction?
(iii) Should there be a separate sanction for reporting failures
apart from the violation not reported?
(h) In applying the factors of past performance and prior
opportunities to identify violations, over what time period should
these factors be considered (e.g., events that occurred two years prior
to the violation for which the current sanction is being considered)?
(i) Is it appropriate to consider the same facts in determining the
existence of a violation, its severity level, and in the application of
the assessment factors (e.g., in a corrective action violation
escalating a penalty for opportunities to correct a matter earlier and
considering the delay as added significance in establishing the
severity level)? If not, why not?
8. The Enforcement Policy provides some flexibility in applying the
adjustment factors but it does provide specified percentages to limit
the application of the factors.
(a) Should the Enforcement Policy be changed to permit
consideration of factors without providing specified percentages that
should be used for the assessment? If not, why not?
(b) If so, should there be any outer limit other than the statutory
maximum per violation?
(c) The deletion of percentages will permit greater judgement and
flexibility to arrive at an appropriate penalty. Will this create a
concern for consistency and predictability?
9. Regional Administrators have been delegated the authority to
issue civil penalties for certain materials cases without review by the
Office of Nuclear Materials, Safety and Safeguards, Office of
Enforcement, or the Office of General Counsel.
(a) Should delegation be similarly considered for certain reactor
cases? If so, what cases warrant such delegation and why? If delegation
is not appropriate, why not?
(b) Are there some violations for which the inspector or section
chief should be allowed to issue proposed civil penalties without
further agency review? ( See question D.4)
10. The Enforcement Policy in Table I.A establishes base civil
penalties for different types of licensees. In developing the table it
was intended that generally, operations involving greater nuclear
inventories and greater potential consequences to the public and
licensee employees would receive higher civil penalties and that the
amounts, as a secondary factor, would reflect an ability to pay the
penalty. Table I.A does not reflect that for a given type of licensee
there can be a wide range in sizes, abilities to pay, and potential
hazards (e.g., large broad base hospitals in comparison to small rural
community hospitals, large research reactors in comparison to very
small reactors, or nation wide radiographer firms in comparison to one
person radiographer firms).
(a) Should Table I.A reflect different sizes of licensees and
different hazards for a given type of licensee? If so, how should this
be considered and reflected in the Enforcement Policy?
(b) Are the categories of licensees listed in Table I.A
appropriate? If not, what changes should be made and why?
(c) Are the base civil penalties amounts in Table I.A of the
Enforcement Policy appropriate for the different types of licensees? If
not, what changes should be made and why?
(d) Are the percentages listed in Table I.B appropriate for the
different severity levels (e.g., 80 percent of the base civil penalty
for a Severity Level II violation)? If not, what changes should be made
and why?
F. Orders and Confirmatory Action Letters
An order is a written NRC directive to modify, suspend, or revoke a
license, or cease and desist from a practice or activity. A
Confirmatory Action Letter is a document that reflects commitments made
by a licensee which may in some cases reflect significant obligations.
Unlike an order, it does not create legal obligations other than a
reporting requirement if an obligation is not met.
1. Should orders be used to a greater or lesser extent than at
present?
2. Should Confirmatory Action Letters be used to a greater or
lesser extent than at present?
3. Under what circumstances should a Confirmatory Action Letter be
used as a substitute for an order?
4. Are licensees actions in response to Confirmatory Action Letters
different from orders? Do licensees treat them differently?
G. Exercise of Discretion
The Enforcement Policy in Section VII. A and B provides guidance on
when to exercise discretion, and either escalate or mitigate
enforcement sanctions, to ensure that the resulting enforcement action
appropriately reflects the level of NRC concern, and conveys the
appropriate regulatory message to the licensee. [Note, the enforcement
review is not addressing section VII.C. of the Enforcement Policy
entitled, ``Exercise of Discretion for an Operating Reactor'' that
addresses ``Notices of Enforcement Discretion.'']
1. Is the guidance provided for exercise of discretion adequate?
2. Should there be additional examples where discretion should be
exercised? For example, should facilities that are recognized by the
NRC to be poor performers (sometimes referred to as plants on the
``watch list'' or ``problem plant list'') continue to be subject to
civil penalties during the period of time it takes to improve their
performance which normally takes some time to achieve? Should such
discretion be exercised even if an average performer with the same
violations would receive a civil penalty? Should the response be
dependent on whether the plant is shut down or operating? Should the
response be dependent on whether the licensee or the NRC identifies the
violation?
H. Timeliness of Enforcement Actions
The NRC attempts to issue routine escalated enforcement actions
within eight weeks of identification of the potential enforcement
issue. An enforcement conference is typically held within four weeks of
completion of an inspection.
1. Are these timeliness guidelines for issuance of escalated
enforcement actions appropriate?
2. Enforcement conferences are usually scheduled at the convenience
of the NRC in the interest of timely enforcement actions. In scheduling
enforcement conferences, should NRC schedule them at the mutual
convenience of both the NRC and licensee even if it delays the
enforcement action, assuming that the delays are not unreasonable?
3. Some enforcement cases take considerably longer than the eight
week goal noted above. Has such delay substantially impacted licensees?
Is such delay a significant concern? Explain.
4. If the time to process an escalated enforcement action should be
reduced, should it be done at the expense of omitting review by the
Office of General Counsel, Office of Enforcement, or the appropriate
program office?
I. Violations Involving Willfulness and Actions Against Persons for
Wrongdoing
The NRC's Enforcement Policy identifies willful violations to be of
particular concern, and provides for escalation of the severity level
of a violation based on willfulness.
1. Does the Enforcement Policy appropriately reflect the
significance of willful violations? If not, how should the Policy be
changed to better reflect the significance of willful violations?
2. Is sufficient guidance provided for developing sanctions against
licensees for willful violations? If not what additional guidance or
criteria would be appropriate?
3. Is sufficient guidance provided for developing consistent
sanctions against individuals for wrongdoing? If not, what additional
guidance or criteria would be appropriate?
4. NRC focuses its enforcement actions on licensees. Normally the
NRC when it issues sanctions to licensees' employees, contractors or
other agents, also issues sanctions to licensees. Should the NRC issue
enforcement actions to licensees when sanctions are also issued to
their employees, contractors or other agents? If not, why not, and
under what circumstances should action not be taken against licensees
for the actions of others?
5. Should orders be used more frequently against individuals who
violate the rule on deliberate misconduct (e.g., 10 CFR 30.10, 40.10,
and 50.5)? Does the potential for the use of such orders increase
accountability by employees and contractors? Do employees and
contractors appreciate that they may be subject to direct action by the
NRC?
6. Should the NRC use civil penalties against individual wrongdoers
who violate regulations such as 10 CFR 30.10 and 10 CFR 50.5 in lieu of
orders which impact the employees' livelihood?
7. A Letter of Reprimand is used to notify an individual of a
violation when a formal sanction is not warranted. Should a Letter of
Reprimand be used rather than a more formal action such as a Notice of
Violation or an order where the individual has willfully violated a
requirement? If so, under what circumstances? For example, should it be
used in cases where a relatively low level employee has been fired as a
result of the violation and the employee appears to be candid and
remorseful.
8. If a criminal sanction is issued against an employee or agent of
a licensee who caused the violation, should civil sanctions be issued
against the licensee who is licensed by the NRC for the activity?
9. The Enforcement Policy also states that civil penalties are
considered for all willful violations. However, to encourage licensees
to identify willful violations and to take strong remedial actions to
demonstrate the seriousness of such violations to other employees and
contractors thereby creating a deterrent effect, discretion may be
exercised for certain willful violations at Severity Level IV or V. Is
this consistent with the seriousness of willful violations and should
this policy be continued? Should it be expanded to other severity
levels?
J. Additional Comments
In addition to the above specific issues, commenters are invited to
provide any other views on the NRC enforcement program which may assist
the NRC in improving the effectiveness of NRC enforcement efforts.
Dated at Rockville, Maryland, this 16th day of August 1994.
For the Nuclear Regulatory Commission.
James Lieberman,
Director, Office of Enforcement.
[FR Doc. 94-20618 Filed 8-22-94; 8:45 am]
BILLING CODE 7590-01-P
