[Federal Register Volume 63, Number 8 (Tuesday, January 13, 1998)]
[Notices]
[Pages 1982-1985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-754]
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
[NUREG-1600]
Policy and Procedure for Enforcement Actions; Deliberate
Misconduct Rule
AGENCY: Nuclear Regulatory Commission.
ACTION: Policy statement: Amendment.
-----------------------------------------------------------------------
SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
``General Statement of Policy and Procedure for NRC Enforcement
Actions'' to conform to modifications to the Deliberate Misconduct
Rule. These modifications extend that Rule to applicants for NRC
licenses, applicants for, and holders of, certificates of compliance,
early site permits, standard design certifications, or combined
licenses issued under part 52, applicants for or holders of
certificates of registration, quality assurance approvals, and the
employees, contractors, subcontractors, and consultants of those
persons. By a separate action published in this issue of the Federal
Register, the Commission has issued a final rule amending 10 CFR parts
30, 32, 40, 50, 52, 60, 61, 70, 71, 72, 110, and 150.
EFFECTIVE DATE: This action is effective on February 12, 1998.
FOR FURTHER INFORMATION CONTACT: James Lieberman, Director, Office of
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001, (301) 415-2741.
SUPPLEMENTARY INFORMATION: The Commission's ``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.
The Deliberate Misconduct Rule was adopted in September 1991 and
applies to any licensee or any employee of a licensee; and any
contractor (including a supplier or consultant), subcontractor, or any
employee of a contractor or subcontractor, of any licensee. The
Deliberate Misconduct Rule placed licensed and unlicensed persons on
notice that they may be subject to enforcement action for deliberate
misconduct that causes or would have caused, if not detected, a
licensee to be in violation of any of the Commission's requirements, or
for deliberately providing to the NRC, a licensee, or contractor,
information that is incomplete or inaccurate in some respect material
to the NRC.
The final rulemaking expands the Deliberate Misconduct Rule, where
it appears in 10 CFR parts 30, 40, 50, 60, 61, 70, 72, and 110,
clarifies the scope of part 32 and adds the Rule to parts 52 and 71.
This expansion arises out of a realization that the current Rule does
not apply to applicants for NRC licenses, applicants for, or holders
of, certificates of compliance, early site permits, standard design
certifications, or combined licenses issued under part 52, applicants
for or holders of certificates of registration, quality assurance
program approvals and the
[[Page 1983]]
employees, contractors, subcontractors, and consultants of those
persons. The Commission believes that it is equally important for these
categories of persons to be subject to enforcement action for
deliberate wrongdoing, such as the submission of inaccurate or
incomplete information.
The Commission is making this change to the General Statement of
Policy and Procedure for NRC Enforcement Actions to make it consistent
with the regulations. The changes include: (1) Expansion of footnote 3
in Section I, which discusses the scope of the Policy; (2) deletion of
the reference to vendors in Section VI.C.5, to avoid possible confusion
as a result of a partial listing of those to whom the Rule and Policy
apply; and (3) restating the opening sentence in Section VI.C.5 and in
Section X: Enforcement Actions Against Non-licensees, to set out the
full scope of the Rule and its application through the Enforcement
Policy.
The Commission has held that the term ``contractor'' includes a
vendor or supplier that manufactures and offers for sale materials
intended for use by NRC licensees and certified to meet the
requirements of 10 CFR part 50, Appendix B. In the Matter of: Five Star
Products, Inc. and Construction Products Research, Inc., 38 NRC 169,
CLI-93-23 (October 21, 1993). In light of that holding, the remaining
references to vendors throughout the Enforcement Policy are also being
modified to refer to contractors as the inclusive term. These changes
are being made in Sections V, VI.B.1, VI.C, VI.D, VIII, X, Table 1A,
and Supplements I.C. and VII.C.
Paperwork Reduction Act
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, Office of Management and Budget.
Accordingly, Sections I, V, VI B., C., and D., VIII, X, and
Supplements I and VII of the NRC Enforcement Policy are amended to read
as follows:
General Statement of Policy and Procedure for NRC Enforcement
Actions
I. Introduction and Purpose
The purpose of the NRC enforcement program is to support the NRC's
overall safety mission in protecting the public and the environment.
Consistent with that purpose, enforcement action should be used:
As a deterrent to emphasize the importance of compliance
with requirements, and
To encourage prompt identification and prompt,
comprehensive correction of violations.
Consistent with the purpose of this program, prompt and vigorous
enforcement action will be taken when dealing with licensees,
contractors,2 and their employees, who do not achieve the
necessary meticulous attention to detail and the high standard of
compliance which the NRC expects.3 Each enforcement action
is dependent on the circumstances of the case and requires the exercise
of discretion after consideration of these policies and procedures. In
no case, however, will licensees who cannot achieve and maintain
adequate levels of protection be permitted to conduct licensed
activities.
---------------------------------------------------------------------------
\2\ The term ``contractor'' as used in this policy includes
vendors who supply products or services to be used in an NRC-
licensed facility or activity.
\3\ This policy primarily addresses the activities of NRC
licensees and applicants for NRC licenses. Therefore, the term
``licensee'' is used throughout the policy. However, in those cases
where the NRC determines that it is appropriate to take enforcement
action against a non-licensee or individual, the guidance in this
policy will be used, as applicable. These non-licensees include
contractors and subcontractors, holders of, or applicants for, NRC
approvals, e.g., certificates of compliance, early site permits, or
standard design certificates and the employees of these non-
licensees. Specific guidance regarding enforcement action against
individuals and non-licensees is addressed in Sections VIII and X,
respectively.
---------------------------------------------------------------------------
* * * * *
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 contractor, the
NRC may provide an opportunity for a predecisional enforcement
conference with the licensee, contractor, or other person before taking
enforcement action. The purpose of the conference is to obtain
information that will assist the NRC in determining the appropriate
enforcement action, such as: (1) A common understanding of facts, root
causes and missed opportunities associated with the apparent
violations, (2) a common understanding of corrective actions taken or
planned, and (3) a common understanding of the significance of issues
and the need for lasting comprehensive corrective action.
* * * * *
During the predecisional enforcement conference, the licensee,
contractor, or other persons will be given an opportunity to provide
information consistent with the purpose of the conference, including an
explanation to the NRC of the immediate corrective actions (if any)
that were taken following identification of the potential violation or
nonconformance and the long-term comprehensive actions that were taken
or will be taken to prevent recurrence. Licensees, contractors, or
other persons will be told when a meeting is a predecisional
enforcement conference.
* * * * *
VI. Enforcement Actions
* * * * *
VI. B. 1. Base Civil Penalty
The NRC imposes different levels of penalties for different
severity level violations and different classes of licensees,
contractors, and other persons. Tables 1A and 1B show the base civil
penalties for various reactor, fuel cycle, and materials programs.
(Civil penalties issued to individuals are determined on a case-by-case
basis.) The structure of these tables generally takes into account the
gravity of the violation as a primary consideration and the ability to
pay as a secondary consideration. Generally, operations involving
greater nuclear material inventories and greater potential consequences
to the public and licensee employees receive higher civil penalties.
Regarding the secondary factor of ability of various classes of
licensees to pay the civil penalties, it is not the NRC's intention
that the economic impact of a civil penalty be so severe that it puts a
licensee out of business (orders, rather than civil penalties, are used
when the intent is to suspend or terminate licensed activities) or
adversely affects a licensee's ability
[[Page 1984]]
to safely conduct licensed activities. The deterrent effect of civil
penalties is best served when the amounts of the penalties take into
account a licensee's ability to pay. In determining the amount of civil
penalties for licensees for whom the tables do not reflect the ability
to pay or the gravity of the violation, the NRC will consider as
necessary an increase or decrease on a case-by-case basis. Normally, if
a licensee can demonstrate financial hardship, the NRC will consider
payments over time, including interest, rather than reducing the amount
of the civil penalty. However, where a licensee claims financial
hardship, the licensee will normally be required to address why it has
sufficient resources to safely conduct licensed activities and pay
license and inspection fees.
* * * * *
Table 1A.--Base Civil Penalties
------------------------------------------------------------------------
------------------------------------------------------------------------
* * * * *
c. Test reactors, mills and uranium conversion facilities,
contractors, waste disposal licensees, and industrial
radiographers............................................. $11,000
* * * * *
------------------------------------------------------------------------
* * * * *
C. Orders
* * * * *
5. Orders to non-licensees, including contractors and
subcontractors, holders of NRC approvals, e.g., certificates of
compliance, early site permits, standard design certificates, or
applicants for any of them, and to employees of any of the foregoing,
are used when the NRC has identified deliberate misconduct that may
cause a licensee to be in violation of an NRC requirement or where
incomplete or inaccurate information is deliberately submitted or where
the NRC loses its reasonable assurance that the licensee will meet NRC
requirements with that person involved in licensed activities.
* * * * *
D. Related Administrative Actions
In addition to the formal enforcement actions, Notices of
Violation, civil penalties, and orders, the NRC also uses
administrative actions, such as Notices of Deviation, Notices of
Nonconformance, Confirmatory Action Letters, Letters of Reprimand, and
Demands for Information to supplement its enforcement program. The NRC
expects licensees and contractors to adhere to any obligations and
commitments resulting from these actions and will not hesitate to issue
appropriate orders to ensure that these obligations and commitments are
met.
1. Notices of Deviation are written notices describing a licensee's
failure to satisfy a commitment where the commitment involved has not
been made a legally binding requirement. A Notice of Deviation requests
a licensee to provide a written explanation or statement describing
corrective steps taken (or planned), the results achieved, and the date
when corrective action will be completed.
2. Notices of Nonconformance are written notices describing
contractors' failures to meet commitments which have not been made
legally binding requirements by NRC. An example is a commitment made in
a procurement contract with a licensee as required by 10 CFR part 50,
Appendix B. Notices of Nonconformances request non-licensees to provide
written explanations or statements describing corrective steps (taken
or planned), the results achieved, the dates when corrective actions
will be completed, and measures taken to preclude recurrence.
3. Confirmatory Action Letters are letters confirming a licensee's
or contractor's agreement to take certain actions to remove significant
concerns about health and safety, safeguards, or the environment.
* * * * *
VIII. Enforcement Actions Involving Individuals
* * * * *
Listed below are examples of situations which could result in
enforcement actions involving individuals, licensed or unlicensed. If
the actions described in these examples are taken by a licensed
operator or taken deliberately by an unlicensed individual, enforcement
action may be taken directly against the individual. However,
violations involving willful conduct not amounting to deliberate action
by an unlicensed individual in these situations may result in
enforcement action against a licensee that may impact an individual.
The situations include, but are not limited to, violations that
involve:
Willfully causing a licensee to be in violation of NRC
requirements.
Willfully taking action that would have caused a licensee
to be in violation of NRC requirements but the action did not do so
because it was detected and corrective action was taken.
Recognizing a violation of procedural requirements and
willfully not taking corrective action.
Willfully defeating alarms which have safety significance.
Unauthorized abandoning of reactor controls.
Dereliction of duty.
Falsifying records required by NRC regulations or by the
facility license.
Willfully providing, or causing a licensee to provide, an
NRC inspector or investigator with inaccurate or incomplete information
on a matter material to the NRC.
Willfully withholding safety significant information
rather than making such information known to appropriate supervisory or
technical personnel in the licensee's organization.
Submitting false information and as a result gaining
unescorted access to a nuclear power plant.
Willfully providing false data to a licensee by a
contractor or other person who provides test or other services, when
the data affects the licensee's compliance with 10 CFR Part 50,
Appendix B, or other regulatory requirement.
Willfully providing false certification that components
meet the requirements of their intended use, such as ASME Code.
Willfully supplying, by contractors of equipment for
transportation of radioactive material, casks that do not comply with
their certificates of compliance.
* * * * *
X. Enforcement Action Against Non-Licensees
The Commission's enforcement policy is also applicable to non-
licensees, including contractors and subcontractors, holders of NRC
approvals, e.g., certificates of compliance, early site permits,
standard design certificates, quality assurance program approvals, or
applicants for any of them, and to employees of any of the foregoing,
who knowingly provide components, equipment, or other goods or services
that relate to a licensee's activities subject to NRC regulation. The
prohibitions and sanctions for any of these persons who engage in
deliberate misconduct or knowing submission of incomplete or inaccurate
information are provided in the rule on deliberate misconduct, e.g., 10
CFR 30.10 and 50.5.
Contractors who supply products or services provided for use in
nuclear activities are subject to certain requirements designed to
ensure that the products or services supplied that could affect safety
are of high quality. Through procurement contracts with licensees,
suppliers may be required to have quality assurance programs that meet
applicable requirements, e.g., 10 CFR part 50, Appendix B, and 10 CFR
part 71, subpart H. Contractors
[[Page 1985]]
supplying certain products or services to licensees are subject to the
requirements of 10 CFR part 21 regarding reporting of defects in basic
components.
When inspections determine that violations of NRC requirements have
occurred, or that contractors have failed to fulfill contractual
commitments (e.g., 10 CFR part 50, Appendix B) that could adversely
affect the quality of a safety significant product or service,
enforcement action will be taken. Notices of Violation and civil
penalties will be used, as appropriate, for licensee failures to ensure
that their contractors have programs that meet applicable requirements.
Notices of Violation will be issued for contractors who violate 10 CFR
part 21. Civil penalties will be imposed against individual directors
or responsible officers of a contractor organization who knowingly and
consciously fail to provide the notice required by 10 CFR 21.21(b)(1).
Notices of Nonconformance will be used for contractors who fail to meet
commitments related to NRC activities.
* * * * *
Supplement I--Reactor Operations
C.6. A licensee failure to conduct adequate oversight of
contractors resulting in the use of products or services that are of
defective or indeterminate quality and that have safety significance;
* * * * *
Supplement VII--Miscellaneous Matters
C.8. A failure to assure, as required, that contractors have an
effective fitness-for-duty program;
* * * * *
Dated at Rockville, Maryland, this 6th day of January, 1998.
For The Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 98-754 Filed 1-12-98; 8:45 am]
BILLING CODE 7590-01-P