[Federal Register Volume 61, Number 203 (Friday, October 18, 1996)]
[Notices]
[Pages 54461-54466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-26679]


=======================================================================
-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION

[NUREG-1600]


Policy and Procedure for Enforcement Actions; Departures From 
FSAR

AGENCY: Nuclear Regulatory Commission.

ACTION: Policy statement: Revision.

-----------------------------------------------------------------------

SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its 
General Statement of Policy and Procedure for Enforcement Actions 
(Enforcement Policy) to address issues associated with departures from 
the Final Safety Analysis Report.

DATES: This revision is effective on October 18, 1996. Comments are due 
on or before November 18, 1996.

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:  As a result of increased regulatory 
attention to Part 50 licensees' adherence to the Final Safety Analysis 
Report and the Updated Final Safety Analysis Report (FSAR), both 
licensees and NRC have identified numerous failures to conform to these 
documents. Given these findings, the Commission has reviewed the 
current Enforcement Policy to determine if additional guidance is 
needed to treat compliance issues associated with departures from the 
FSAR. The Commission has concluded that the guidance in the current 
Enforcement Policy, NUREG-1600, published in the Federal Register (60 
FR 34381; June 30, 1995) should be revised.
    Many operating licenses contain a finding which states that the 
licensed facility is as described in the FSAR, as amended and revised. 
In accordance with 10 CFR 50.59, the Commission allows licensees to 
make changes to the facility or procedures described in the FSAR and to 
perform certain tests or experiments not described in the FSAR without 
prior NRC approval provided evaluations are performed to demonstrate 
that the change does not involve an unreviewed safety question and the 
change does not conflict with a technical specification. Specifically, 
10 CFR 50.59(a) provides:

    The holder of a license authorizing operation of a production or 
utilization facility may (i) make changes in the facility as 
described in the safety analysis report, (ii) make changes in the 
procedures as described in the safety analysis report, and (iii) 
conduct tests or experiments not described in the safety analysis 
report, without prior Commission approval, unless the proposed 
change, test, or experiment involves a change in the technical 
specifications incorporated in the license or an unreviewed safety 
question.

    If an unreviewed safety question or a change to a technical 
specifications is involved, 10 CFR 50.59(c) requires that the licensee 
submit an application for a license amendment pursuant to 10 CFR 50.90, 
before making the change or departing from the FSAR.
    Section 50.59(b) requires that the evaluation be documented in 
writing and maintained and reports of the changes be submitted to the 
Commission. Periodic updates to the FSAR are required by 10 CFR 
50.71(e) to reflect changes made under 10 CFR 50.59.
    The regulatory process is predicated on the assumption that when 
the license is issued, the facility, procedures, tests, and experiments 
will be as described in the FSAR. Thus, 10 CFR 50.59 is primarily a 
prospective requirement. Section 50.59 requires a process to be 
followed in evaluating proposed changes from the description of the 
facility and its procedures described in the FSAR. However, 10 CFR 
50.59 is also used to form the basis for citations when the facility or 
procedures never met the description in the FSAR. These cases represent 
de facto changes from the FSAR. A failure of the facility to conform to 
the FSAR may also mean that the FSAR may contain inaccurate or 
incomplete information, subjecting the licensee to enforcement action 
for a violation of 10 CFR 50.9.
    In addition, failure to meet a specific commitment in the FSAR 
which

[[Page 54462]]

describes how the licensee was to meet a regulatory requirement, may be 
a violation of that regulatory requirement. In some cases, the 
departure from the FSAR, if it does not involve a change to the 
facility, procedures, or tests or experiments described in the FSAR, 
may not cause the licensee to be in violation of any legal requirement. 
In such cases, the departure from the FSAR would not be a violation, 
and only a Notice of Deviation may be warranted.
    Thus, there are a variety of requirements that can be used to form 
the basis for enforcement action to address departures from the FSAR. 
Each potential enforcement case is reviewed on its merits to determine 
which requirement, or set of requirements, is appropriate to base the 
enforcement action on. Given a violation of NRC requirements, the next 
step in the process is to determine the severity level of the violation 
based on the safety and regulatory significance of the violation. The 
Enforcement Policy provides definitions of severity levels (Section IV. 
Severity of Violations) and examples (Supplements I-VIII) which are 
used in categorizing the severity levels of violations.

Revisions to the NRC Enforcement Policy

    Given the variety of discrepancies from the FSARs that have been 
recently found, additional guidance has been developed to address 
severity levels to categorize violations of 10 CFR 50.59 and 50.71(e) 
and reporting requirements, application of the corrective action factor 
in Section VI.B.2.c. of the Enforcement Policy, use of Section VII.B.3 
of the Enforcement Policy, Enforcement Discretion for Violations 
Involving Old Design Issues, and applying enforcement discretion to 
increase sanctions in this area under Section VII.A.2 of the 
Enforcement Policy.
    In developing this guidance, the Commission considered the 
following two principles: (1) The importance of licensees performing 
appropriate evaluations to ensure that there are not unreviewed safety 
questions or conflicts with technical specifications, and (2) the 
importance of maintaining and controlling changes to the FSAR so that 
both the licensee and the NRC understand the regulatory envelope that 
has been established for the facility. The changes to the Enforcement 
Policy described below should make it clear to licensees that the 
Commission believes that failures in either area can be significant and 
can justify substantial regulatory action.
    The Commission recognizes that not every unreviewed safety question 
is a significant safety issue. However, until the question is reviewed 
and understood, there is an uncertainty in the basis for the 
Commission's safety decision in licensing the plant. Therefore, the 
failure to follow the regulatory process established by 10 CFR 50.59, 
regardless of the actual safety significance of the change, when there 
is an unreviewed safety question or a conflict with a technical 
specification, is a significant regulatory concern. Licensees must 
ensure that they are in conformance with the FSAR as it was a key 
element for the basis for the Commission's decision in licensing the 
plant and continues to be an important consideration in current 
licensing actions. The enforcement process is a tool that the 
Commission intends to use to emphasize the importance of achieving this 
conformance and deter violations from continuing in this area.

1. Severity Levels

    The definitions and examples of severity levels in the current 
Enforcement Policy provide sufficient guidance to cover most potential 
violations. Additional guidance is needed to address violations of 10 
CFR 50.59 and 50.71(e) which are the requirements that likely will most 
often be used to address departures from the FSAR. Currently, two 
specific examples are provided to categorize violations of 10 CFR 50.59 
in Supplement I, Reactor Operations and no examples specifically 
address violations of 10 CFR 50.71(e).
    The first example, I.C.5, provides that a Severity Level III 
violation would involve:

    A significant failure to meet the requirements of 10 CFR 50.59, 
including a failure such that a required license amendment was not 
sought.

    This example includes changes involving unreviewed safety questions 
and conflicts with technical specifications. It also includes 
situations not involving an unreviewed safety question where the 
licensee would need to perform a detailed evaluation before it would 
have had a reasonable expectation that an unreviewed safety question 
was not involved without the performance of a detailed evaluation. This 
is significant because of the importance of licensees using the 
required process for maintaining and operating the facilities in 
accordance with the design and procedures described in the FSAR when 
there is uncertainty as to whether an unreviewed safety question is 
present. An after-the-fact evaluation that demonstrates that an 
unreviewed safety question was not involved would, in general, not 
mitigate the regulatory significance of failing to perform an 
appropriate evaluation prior to implementation of the change.
    The second example, I.D.2, provides that a Severity Level IV 
violation would be a failure to meet the requirements of 10 CFR 50.59 
that does not result in a Severity Level I, II, or III violation.

Revised Examples of Severity Levels

    Consistent with the above two principles, the changes to the 
Enforcement Policy provide additional examples to categorize severity 
levels for violations associated with failures to meet the FSAR. The 
current two examples described above are deleted and the following ten 
examples are being added to the policy:
Severity Level II
    One example of a Severity Level II problem (the term ``problem'' is 
used here since more than one violation is involved) is proposed. 
Example I.B.4 1 addresses inspection findings involving a number 
of failures to meet 10 CFR 50.59 including several unreviewed safety 
questions, and/or conflicts with a technical specification, involving a 
broad spectrum of problems affecting multiple areas, some of which 
impact the operability of required equipment. This situation is a very 
significant concern, the definition of a Severity Level II problem, 
because of the breadth of the process failures and the impact on 
equipment operability as well as the licensing envelope.
---------------------------------------------------------------------------

    \1\ The examples are numbered in accordance with the numbering 
used in the changes to the Enforcement Policy.
---------------------------------------------------------------------------

    As to Severity Level II violations or problems, the Enforcement 
Policy provides that the base civil penalty for a Severity Level II 
violation or problem is $88,000. However, Section VII.A.1.a of the 
Policy provides that discretion should be considered for Severity Level 
II cases. In assessing civil penalties for cases meeting the above 
example, discretion will be considered, consistent with the Policy, 
based on the number and nature of the violations and the breadth of the 
problem that warranted the Severity Level II categorization in 
determining whether civil penalties substantially in excess of the base 
amount are warranted. This will include consideration of assessing 
separate civil penalties for each violation that is aggregated into the 
Severity Level II problem.

[[Page 54463]]

Severity Level III
    Four examples of Severity Level III violations are added that 
demonstrate a significant regulatory concern, the definition of a 
Severity Level III violation:
    Example I.C.10 involves an unreviewed safety question, and/or 
conflict with a technical specification. Example I.C.11. addresses the 
failure to perform the required evaluation under section 50.59 prior to 
implementation of the change in those situations in which an extensive 
evaluation would be needed before a licensee would have had a 
reasonable expectation that an unreviewed safety question did not 
exist. The fact that a post-implementation evaluation demonstrated that 
no unreviewed safety question existed would not mitigate the regulatory 
significance of the failure to perform the required evaluation prior to 
implementation of the change. These two examples encompass the prior 
example I.C.5. Example I.C.11 is set out as a separate example to give 
clearer notice.
    Example I.C.12 addresses programmatic failures (i.e., multiple or 
recurring failures) to meet the requirements of 10 CFR 50.59 and/or 
50.71(e) which show a significant lack of attention to detail resulting 
in a current safety or regulatory concern about the accuracy of the 
FSAR or a concern that 10 CFR 50.59 requirements are not being met. 
This example addresses a current programmatic failure or past 
programmatic failure of current concern to meet 10 CFR 50.59 or 
50.71(e). Application of this example requires weighing factors such 
as: a) the time period over which the violations occurred and existed, 
b) the number of failures, c) whether one or more systems, functions, 
or pieces of equipment were involved and the importance of such 
equipment, functions, or systems, and d) the potential significance of 
the failures.
    Example I.C.13. addresses the failure to update the FSAR as 
required by 10 CFR 50.71(e) where the failure to update the FSAR 
resulted in an inadequate decision that demonstrates a significant 
regulatory concern. This example addresses a significant failure 
associated with 10 CFR 50.71(e) where the violation adversely impacted 
other decisions such as whether or not a license amendment is needed or 
whether or not an NRC licensing action should be taken. An example of 
such a violation would be the failure to update the FSAR to delete a 
reference to equipment that had been properly removed from the 
facility. As a result an inadequate decision was made that an 
unreviewed safety question was not present for a subsequent change to 
the facility based on the presumed presence of equipment that the FSAR 
erroneously indicated was still present in the plant.
Severity Level IV
    Four examples of Severity Level IV violations are added that 
demonstrate violations of more than minor concern which left 
uncorrected, could become a more significant concern, the definition of 
a Severity Level IV violation.
    Example I.D.5 addresses relatively isolated violations 2 of 10 
CFR 50.59 not involving severity level II or III violations that do not 
suggest a programmatic failure to meet 10 CFR 50.59. Example I.D.6 
addresses a relatively isolated failure to document an evaluation where 
there is evidence that an adequate evaluation was performed prior to 
the change in the facility or procedures, or the conduct of an 
experiment or test. Example I.D.7 addresses a failure to update the 
FSAR as required by 10 CFR 50.71(e) where an adequate evaluation under 
10 CFR 50.59 had been performed and documented. These three examples 
are, by their nature, less significant than a Severity Level III 
violation.
---------------------------------------------------------------------------

    \2\ Relatively isolated violations or failures would include a 
number of recently discovered violations that occurred over a period 
of years and are not indicative of a programmatic safety concern 
with meeting the requirements of 10 CFR 50.59 or 50.71(e).
---------------------------------------------------------------------------

    Example I.D.8 addresses a past programmatic failure to meet 10 CFR 
50.59 and/or 10 CFR 50.71(e) requirements not involving Severity Level 
II or III violations that does not reflect a current safety or 
regulatory concern about the accuracy of the FSAR or a current concern 
that 10 CFR 50.59 requirements are not being met. This example is 
similar to example I.C.12. However, it is less significant because it 
does not involve a current performance issue nor does it have a current 
impact. This would address past programmatic issues where both the 
cause and the impacts have been corrected.
    The determination of whether a violation or grouping of violations 
should be considered a severity level III or IV matter will require 
exercise of judgement to determine if the failures are sufficiently 
broad and programmatic to warrant a finding of significant regulatory 
concern. To maintain consistency and fairness, the regions will 
coordinate with the Office of Enforcement on severity level IV cases 
where there is a potential to categorize the violations at a severity 
level III.
Minor Violations
    An example is added to address minor violations which are not 
subject to formal enforcement action under the Enforcement Policy and 
are not normally addressed in inspection reports. Example I.E addresses 
a failure to meet 10 CFR 50.59 requirements that involves a change to 
the FSAR description or procedure, or involves a test or experiment not 
described in the FSAR, where there was not a reasonable likelihood that 
the change to the facility or procedure or the conduct of the test or 
experiment would ever be an unreviewed safety question. The example 
also addresses a failure to meet 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.
    This example is provided because 10 CFR 50.59 covers the complete 
FSAR. However, there are some descriptions in the FSAR of the facility 
or procedures that have very little or no relevance to safety and are 
of little or no regulatory concern. Nevertheless, by the specific terms 
of the regulation, changes to the facility as described in the FSAR 
must be evaluated. Violations in these areas are by definition minor 
and if included in an inspection report would be non-cited pursuant to 
section IV of the Enforcement Policy such as a change to the location 
of sanitary sewer lines (in contrast to natural gas pipelines) in owner 
controlled areas. The focus of this example is on plant equipment, 
procedures, tests, or experiments described in the FSAR that would not 
reasonably have any impact on safety regardless of the change. If the 
change involves equipment, procedures and tests that have some safety 
purpose the violation should normally be considered to be of more than 
a minor concern.

2. Corrective Action

    Corrective action is a key element in considering the appropriate 
sanction. The discussion of corrective action in Section VI.B.2.c. of 
the Enforcement Policy has been expanded to provide that in response to 
violations of 10 CFR 50.59, corrective action should normally be 
considered prompt and comprehensive only if the licensee (1) makes a 
prompt decision on operability, and either (2) 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 (3) 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. It is important for

[[Page 54464]]

licensees to recognize the need for these actions because until such 
actions are taken the violation continues unabated.

3. Reporting

    Section IV.D. of the Enforcement Policy provides that unless 
otherwise categorized in the Supplements, 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 be reported. The Policy has been 
clarified to make it clear that failure to make a required report under 
10 CFR 50.72 and 50.73, if the matter not reported involves (i) an 
unreviewed safety question (ii) a conflict with a technical 
specification or (iii) any Severity Level III violation, is a 
significant regulatory concern. The NRC needs such information 
concerning significant issues to carry out its regulatory 
responsibilities.

4. Old Design Issues

    Section VII.B.3, Violations Involving Old Design Issues, of the 
Enforcement Policy addresses enforcement discretion for old design 
issues and may be applicable to some 10 CFR 50.59 violations to the 
extent that voluntary action by a licensee identifies a past problem, 
such as in engineering, design, or installation. This discretion 
addresses violations that would not likely be identified by routine 
licensee efforts such as normal surveillance or quality assurance 
activities. Identification of past violations through required efforts 
would be treated using the normal policy.
    This provision was originally adopted to encourage voluntary 
initiatives to establish design reconstitution programs such as 
licensee initiated safety systems functional inspections to identify 
and correct past design errors. This section places a premium on 
licensees identifying issues before degraded equipment is called upon 
to work. Similarly, application of this provision in the policy to past 
FSAR issues could encourage licensees to establish programs with goals 
to ensure full compliance with the FSAR licensing basis and determine 
if there are unknown unreviewed safety questions that have not been 
identified and addressed. To justify the exercise of Section VII.B.3 
discretion, licensees must take comprehensive corrective action. The 
policy provides that licensees should expand their reviews, as 
necessary, to identify other failures from similar root causes. Thus, 
in applying this discretion, as with any significant violation 
associated with 10 CFR 50.59 and 50.71(e), the licensee should be 
taking broad corrective action to ensure that the licensee is meeting 
its licensing basis. The corrective action should have a defined scope 
and schedule.
    The Commission intends to utilize Section VII.B.3 of the 
Enforcement Policy to provide incentives to encourage licensees to 
identify and correct violations which are not normally identified 
through current surveillance and quality assurance activities. 
Enforcement action would normally not be taken against a licensee if 
the licensee identifies violations up to and including Severity Level 
II associated with the FSAR by a voluntary initiative (including either 
a formal program or informal effort where issues are identified through 
a questioning attitude of an employee), provided the licensee takes 
comprehensive corrective action and appropriately expands the scope of 
the voluntary initiative to identify other failures with similar root 
causes. If this enforcement discretion is utilized, the licensee's 
voluntary initiative must be described in writing and be publicly 
available. The staff will reference and summarize the licensee's 
voluntary initiative, including the scope and schedule for corrective 
action, in an inspection report and will follow the licensee's 
corrective action until complete as an inspection report open item.
    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 
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 within two years of this policy change);
    (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.
    Applying this discretion should further the objectives of the 
Enforcement Policy to encourage identification and correction of 
violations as well as provide deterrence for future violations.
    The Commission recognizes the importance to provide licensees with 
incentives to embark on voluntary initiatives to identify and correct 
FSAR discrepancies. However, licensees should be designing and 
implementing their programs with goals to have these discrepancies 
identified in the near term. Therefore, it is not appropriate to 
continue indefinitely the granting of enforcement discretion in cases 
where the NRC identifies the violations. As provided above in item a, 
for NRC identified violations use of Section VII.B.3 enforcement 
discretion for FSAR discrepancies will consider the schedule for the 
licensee's voluntary initiative and when NRC identified the violation. 
The two year period will provide a reasonable time period and incentive 
for licensees to plan and conduct appropriate reviews to ensure that 
their facilities meet the descriptions in the FSAR and take necessary 
corrective action. The staff will continue to document in inspection 
reports the results of its inspections against the FSAR and other than 
the exception noted in item a, above, will continue enforcement for 
NRC-identified violations.
    Following this two year period, if a Severity Level II ($88,000) or 
III ($55,000) violation is identified, the Commission intends to use 
its discretion to increase the fine and could assess civil penalties 
for each violation or problem of $110,000 which may be further 
escalated after considering 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), rather than the normal assessment factors. This approach 
is intended to increase the incentive for licensees to take timely 
action to ensure that their facilities match the FSAR. For example, if 
a single Severity Level III violation is identified by the NRC and it 
lasted for more than one day, a civil penalty of $220,000 could be 
assessed. If the licensee identified the same violation and application 
of enforcement discretion under Section VII.B.3 was not warranted, a 
civil penalty of $110,000 ($55,000  x  2 days) could be assessed for 
the example cited above which will provide some recognition of the 
licensee's efforts. Section VII.A.1 of the

[[Page 54465]]

Enforcement Policy is being amended consistent with this approach.
    In summary, to encourage licensees promptly to undertake voluntary 
initiatives to identify and correct FSAR noncompliances, the NRC is 
modifying Section VII.B.3 of the Enforcement Policy to provide for:
    (1) The exercise of discretion to refrain from issuing civil 
penalties and, in some instances, citations for a two year period where 
a licensee undertakes voluntary initiative to identify and correct FSAR 
noncompliances that will be completed within that two year period, and
    (2) The exercise of discretion to escalate the amount of the civil 
penalties for FSAR/50.59 noncompliances identified by the NRC 
subsequent to the two year voluntary initiative period.

Amounts of Penalties

    The amounts of penalties reflected in this Notice and the 
accompanying Policy Statement are based on the current Policy Statement 
that was revised on October 4, 1996 and published in the Federal 
Register on October 11, 1996 (61 FR 53557). The revised penalty amounts 
apply to violations occurring or continuing after November 12, 1996. 
Otherwise the amounts in the Policy Statement at the time of the 
violation will be used in assessing any civil penalty.

Paperwork 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 3150-0136. 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 as follows:

GENERAL STATEMENT OF POLICY AND PROCEDURE FOR NRC ENFORCEMENT 
ACTIONS

    1. In Section VI., add the following language at the end of 
paragraph B.2.c.

VI. Enforcement Actions

* * * * *
    B. Civil Penalty. * * *
    2. Civil Penalty assessment. * * *
    c. Credit for prompt and comprehensive corrective action * * *
    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.
* * * * *
    2. In Section VII., add the following language as paragraph h. at 
the end of paragraph A.1.g.:

VII. Exercise of Discretion

    A. Escalation of Enforcement Sanctions. * * *
    h. Severity Level II or III violations associated with departures 
from the Final Safety Analysis Report identified after two years from 
October 18, 1996. 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).
* * * * *
    3. In Section VII. add at the end of paragraph B.3:
    B. Mitigation of Enforcement Sanctions. * * *
    3. Violations Involving Old Design Issues. * * *
* * * * *
    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 
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 within two years after October 18, 1996;
    (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. In Supplement I, paragraphs C(5) and D(2); are removed and 
paragraphs B(4), C(10), C(11), C(12), C(13), C(14), D(5), D(6), D(7), 
D(8) and E are added to read as follows:

Supplement I--Reactor Operations

    B. Severity Level II--Violations involving for example:
* * * * *
    4. Failures to meet 10 CFR 50.59 including several unreviewed 
safety questions, or conflicts with technical specifications, involving 
a broad spectrum of problems affecting multiple areas, some of which 
impact the operability of required equipment.
    C. Severity Level III--Violations involving for example:
* * * * *
    5. [Reserved]
* * * * *
    10. The failure to meet 10 CFR 50.59 where an unreviewed safety 
question is involved, or a conflict with a technical specification, 
such that a license amendment is required;
    11. The failure to perform the required evaluation under 10 CFR 
50.59 prior to implementation of the change in those situations in 
which no unreviewed safety question existed, but an extensive 
evaluation would be needed before a licensee would have had a 
reasonable expectation that an unreviewed safety question did not 
exist;
    12. Programmatic failures (i.e., multiple or recurring failures) to 
meet the requirements of 10 CFR 50.59 and/or 50.71(e) that show a 
significant lack of attention to detail, whether or not such failures 
involve an unreviewed safety question, resulting in a current safety or 
regulatory concern about the accuracy of the FSAR or a concern that

[[Page 54466]]

10 CFR 50.59 requirements are not being met. Application of this 
example requires weighing factors such as: (a) the time period over 
which the violations occurred and existed, (b) the number of failures, 
(c) whether one or more systems, functions, or pieces of equipment were 
involved and the importance of such equipment, functions, or systems, 
and (d) the potential significance of the failures;
    13. 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 and as a result, an inadequate decision was made 
demonstrating a significant regulatory concern; or
    14. The failure to make a report required by 10 CFR 50.72 or 50.73 
associated with (a) an unreviewed safety question, (b) a conflict with 
a technical specification, or (c) any other Severity Level III 
violation.
    D. Severity Level IV--Violations involving for example:
* * * * *
    2. [Reserved]
* * * * *
    5. Relatively isolated violations of 10 CFR 50.59 not involving 
severity level II or III violations that do not suggest a programmatic 
failure to meet 10 CFR 50.59. Relatively isolated violations or 
failures would include a number of recently discovered violations that 
occurred over a period of years and are not indicative of a 
programmatic safety concern with meeting 10 CFR 50.59 or 50.71(e);
    6. A relatively isolated failure to document an evaluation where 
there is evidence that an adequate evaluation was performed prior to 
the change in the facility or procedures, or the conduct of an 
experiment or test;
    7. A failure to update the FSAR as required by 10 CFR 50.71(e) 
where an adequate evaluation under 10 CFR 50.59 had been performed and 
documented; or
    8. A past programmatic failure to meet 10 CFR 50.59 and/or 10 CFR 
50.71(e) requirements not involving Severity Level II or III violations 
that does not reflect a current safety or regulatory concern about the 
accuracy of the FSAR or a concern that 10 CFR 50.59 requirements are 
not being met.
    E. Minor Violations:
    A failure to meet 10 CFR 50.59 requirements that involves a change 
to the FSAR description or procedure, or involves a test or experiment 
not described in the FSAR, where there was not a reasonable likelihood 
that the change to the facility or procedure or the conduct of the test 
or experiment would ever be an unreviewed safety question. 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. The 
focus of the minor violation is not on the actual change, test, or 
experiment, but on the potential safety role of the system, equipment, 
etc. that is being changed, tested, or experimented on.
* * * * *
    Dated at Rockville, MD, this 11th day of October 1996.

    For the Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 96-26679 Filed 10-17-96; 8:45 am]
BILLING CODE 7590-01-P