[Federal Register Volume 76, Number 172 (Tuesday, September 6, 2011)]
[Proposed Rules]
[Pages 54986-54991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-22646]
=======================================================================
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
10 CFR Chapter I
[NRC-2011-0209]
NRC Enforcement Policy
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed enforcement policy revision; request for comment.
-----------------------------------------------------------------------
SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or the Commission)
is soliciting comments from interested parties, including public
interest groups, States, members of the public, and the regulated
industry (i.e., reactor, fuel cycle, and materials licensees, vendors,
and contractors), on several topics addressed in this document to
assist the NRC in revising its Enforcement Policy. The NRC staff is
currently evaluating these topics for inclusion in the next revision to
the NRC Enforcement Policy. The proposed Policy topics discussed in
this document will not address all the items in SRM-SECY-09-0190,
``Major Revision to NRC Enforcement Policy,'' dated August 27, 2010
(NRC's Agencywide Documents Access and Management System (ADAMS)
Accession No. ML102390327). Before the staff submits the next proposed
Policy revision to the Commission for approval in early Calendar Year
2012, it will publish a second document in the Federal Register to
solicit public comments on additional topics.
DATES: Submit comments by October 6, 2011. Comments received after this
date will be considered if it is practical to do so, but the NRC is
able to assure consideration only for comments received on or before
this date.
ADDRESSES: Please include Docket ID NRC-2011-0209 in the subject line
of
[[Page 54987]]
your comments. For additional instructions on submitting comments and
instructions on accessing documents related to this action, see
``Submitting Comments and Accessing Information'' in the SUPPLEMENTARY
INFORMATION section of this document. You may submit comments by any
one of the following methods:
Federal Rulemaking Web site: Go to http://www.regulations.gov and search for documents filed under Docket ID NRC-
2011-0209. Address questions about NRC dockets to Carol Gallagher,
telephone: 301-492-3668; e-mail: [email protected].
Mail comments to: Cindy Bladey, Chief, Rules,
Announcements, and Directives Branch (RADB), Office of Administration,
Mail Stop: TWB-05-B01M, U.S. Nuclear Regulatory Commission, Washington,
DC 20555-0001.
Fax comments to: RADB at 301-492-3446.
FOR FURTHER INFORMATION CONTACT: Doug Starkey, Office of Enforcement,
U.S. Nuclear Regulatory Commission, Washington, DC 20555; telephone:
301-415-3456, e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Submitting Comments and Accessing Information
Comments submitted in writing or in electronic form will be posted
on the NRC Web site and on the Federal rulemaking Web site, http://www.regulations.gov. Because your comments will not be edited to remove
any identifying or contact information, the NRC cautions you against
including any information in your submission that you do not want to be
publicly disclosed.
The NRC requests that any party soliciting or aggregating comments
received from other persons for submission to the NRC inform those
persons that the NRC will not edit their comments to remove any
identifying or contact information, and therefore, they should not
include any information in their comments that they do not want
publicly disclosed.
You can access publicly available documents related to this action
using the following methods:
NRC's Public Document Room (PDR): The public may examine
and have copied, for a fee, publicly available documents at the NRC's
PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike,
Rockville, Maryland 20852.
ADAMS: Publicly available documents created or received at
the NRC are available online in the NRC Library at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain entry into
ADAMS, which provides text and image files of the NRC's public
documents. If you do not have access to ADAMS or if there are problems
in accessing the documents located in ADAMS, contact the NRC's PDR
reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to
[email protected]. The Enforcement Policy is accessible under ADAMS
Accession No. ML093480037.
Federal Rulemaking Web Site: Public comments and
supporting materials related to this proposed enforcement policy
revision can be found at http://www.regulations.gov by searching on
Docket ID NRC-2011-0209.
The NRC maintains the Enforcement Policy on its Web site at http://www.nrc.gov; under ``Spotlight,'' select ``Enforcement Actions,'' and
then select ``Policy'' under ``Issued Significant Enforcement
Actions.''
II. Background
On August 27, 2010, in SRM-SECY-09-0190, the Commission approved a
major revision to its Enforcement Policy. On September 30, 2010, the
NRC published a notice (75 FR 60485) to announce an effective date of
September 30, 2010, for that revision to the Policy. In SRM-SECY-09-
0190, the Commission also directed the NRC staff to evaluate certain
topics for inclusion in the next revision to the Policy. In addition to
those Commission-identified topics, the staff is evaluating other
topics that it may present to the Commission for approval and inclusion
in the next Policy revision. The background on topics that the staff is
evaluating and the corresponding proposed wording for inclusion in the
next Enforcement Policy revision follows in Sections 1-5. As previously
stated, the staff will, at a future date, solicit public comments on
additional topics for the next proposed Policy revision.
1. Guidance for the Use of Daily Civil Penalties
Daily civil penalties are an enforcement action that is available
to the NRC under Section 234 of the Atomic Energy Act of 1954, as
amended (AEA), and Title 10 of the Code of Federal Regulations (10 CFR)
2.205(j). Historically, the NRC has rarely issued daily civil penalties
for violations of its requirements. In certain cases, the agency did
issue such penalties because it needed to send a strong regulatory
message for continuing significant violations.
The Enforcement Policy currently provides limited guidance on the
use of daily civil penalties. Section 2.3.4 of the Enforcement Policy,
``Civil Penalty,'' currently addresses the use of daily civil penalties
as follows:
The NRC may exercise discretion and assess a separate violation
and attendant civil penalty up to the statutory limit for each day
the violation continues. The NRC may exercise this discretion when a
licensee was aware of a violation, or if the licensee had a clear
opportunity to identify and correct the violation but failed to do
so.
In SRM-SECY-09-0190, the Commission directed the NRC staff to
include additional guidance, such as criteria and examples, in the next
proposed revision to the Enforcement Policy to help determine when
daily civil penalties are appropriate. The intent of this proposed
Policy revision is to provide factors for the staff to consider when
evaluating the appropriateness of daily civil penalties for continuing
violations of at least moderate significance.
The staff proposes to replace the existing paragraph in Section
2.3.4 of the current Policy with the following three paragraphs:
The NRC may exercise discretion and assess a separate violation
and attendant civil penalty up to the statutory limit for each day
the violation continues (i.e., daily civil penalties). The NRC may
exercise this discretion when a licensee was aware of a violation of
at least moderate significance and had a clear opportunity to
prevent, identify, and correct the violation but failed to do so.
In evaluating whether daily civil penalties are appropriate, the
NRC will consider such factors as whether the violation resulted in
actual consequences to public health and safety or to the common
defense and security, the safety significance of the violation,
whether the violation was repetitive because of inadequate
corrective actions, the degree of management culpability in allowing
the violation to continue or in not precluding it, the
responsiveness of the licensee once the violation and its
significance were identified and understood, whether the continuing
violation was deliberate, and the duration of the violation. These
evaluation factors are not necessarily of equal significance;
therefore, for each case, the NRC will weigh the relative importance
of each contributing factor, as well as any extenuating
circumstances, to determine whether it is appropriate to use daily
civil penalties.
When the NRC determines that the use of daily civil penalties is
appropriate as part of an enforcement action, the agency will assess
a base civil penalty for the first day of the violation in
accordance with the civil penalty assessment process discussed in
this section and Section 8.0, ``Table of Base Civil
[[Page 54988]]
Penalties,'' of the Policy. Then, to determine the total civil
penalty for the continuing violation, the NRC will supplement the
base civil penalty determination with a daily civil penalty for some
or all the days the violation continues. The NRC will determine the
amount of the daily civil penalty on a case-by-case basis after
considering the factors noted in the preceding paragraph and any
relevant past precedent for similar violations. The daily civil
penalty may be less than the maximum statutory daily limit in effect
at the time of the violation.
2. Credit for Fuel Cycle Licensee Corrective Action Program
All licensees, including fuel cycle licensees, are eligible to
receive credit for prompt and comprehensive corrective actions taken in
response to issues that warrant escalated enforcement actions (i.e.,
Severity Level (SL) I, II, and III violations and violations associated
with red, yellow, and white significance determination process findings
with actual consequences) as part of the NRC's civil penalty assessment
process, as discussed in Section 2.3.4 of the Enforcement Policy.
Corrective action credit under Section 2.3.4 is applicable to all
licensees regardless of whether a licensee has a corrective action
program (CAP). As stated in Section 2.3.4.c of the Policy, the purpose
of this corrective action factor in the civil penalty assessment
process is to encourage licensees (1) to take the immediate actions
necessary upon discovery of a violation that will restore safety,
security, and compliance with the license, regulation(s), or other
requirement(s) and (2) to develop and implement (in a timely manner)
the lasting actions that not only will prevent recurrence of the
violation at issue but also will be appropriately comprehensive, given
the significance and complexity of the violation, to prevent the
occurrence of violations with similar root causes.
In response to the Commission's direction in SRM-SECY-09-0190, the
staff proposes revisions to the Enforcement Policy to provide fuel
cycle licensees with credit for a CAP for certain SL IV violations.
Presently, this corrective action program credit for certain SL IV
violations is only available to power reactor licensees. This revision
would allow fuel cycle licensees with credit for a CAP to have NRC-
identified SL IV violations treated as non-cited violations (NCVs) if
certain other criteria are met.
Section 2.3.2, ``Non-Cited Violation,'' of the current Enforcement
Policy provides criteria that all NRC licensees must meet before the
agency can disposition a SL IV violation as a NCV. These criteria, in
part, state the following:
The violation was corrected or committed to be corrected
within a reasonable period of time (commensurate with the significance
of the violation).
The violation was not repetitive as a result of inadequate
corrective action. (This does not apply to violations associated with
green Reactor Oversight Process findings).
The violation was not willful. Notwithstanding
willfulness, a NCV may still be appropriate in certain specified
circumstances.
In addition to the above criteria, Section 2.3.2.a., ``Power
Reactor Licensees,'' of the Enforcement Policy provides credit to power
reactor licensees for their CAP, allowing the agency to disposition
either NRC-inspector-identified or licensee-identified SL IV violations
as NCVs if the violations are entered into a CAP. The current Policy
does not allow the agency to disposition NRC-inspector-identified SL IV
violations at fuel cycle licensees as NCVs. To disposition a SL IV
violation as a NCV at any NRC licensee other than a power reactor
licensee, Section 2.3.2.b., ``All Other Licensees,'' of the Enforcement
Policy requires, in addition to the criteria stated above, the licensee
to have already identified the violation.
The staff proposes the following changes to the Enforcement Policy
to provide fuel cycle licensees credit for a CAP. (Note that until the
NRC develops inspection procedures establishing criteria that a fuel
cycle licensee must meet for approval of its CAP and until the NRC
completes inspections to ensure that a fuel cycle licensee's CAP is
acceptable, criteria for the disposition of SL IV violations as NCVs at
fuel cycle licensees will remain as stated in Section 2.3.2.b. of this
Policy.)
Revise the title of Section 2.3.2.a. from ``Power Reactor
Licensees'' to ``Licensees or Applicants with an Approved Corrective
Actions Program.''
Insert a footnote in Section 2.3.2.a that states, ``NRC
approval of a licensee's corrective action program will be determined
based on the results of applicable NRC inspections.''
Revise the title of Section 2.3.2.b. from ``All Other
Licensees'' to ``All Other Licensees or Applicants.''
3. Civil Penalties to Individuals Who Disclose Safeguards Information
The current Enforcement Policy provides limited guidance on the
topic of civil penalties to individuals who release Safeguards
Information (SGI). Therefore, the NRC staff is proposing additional
Policy guidance for use in determining when the agency should issue
civil penalties to individuals who release SGI. This additional
guidance, if approved by the Commission, would provide the guidance as
an assessment tool for the staff. The NRC will determine the
appropriateness of civil penalties on a case-by-case basis, depending
on the circumstances and significance associated with each case.
The staff is proposing a base civil penalty of $3,500 for
individuals who release SGI. The addition of a new category in Table A
of Section 8.0, ``Table of Base Civil Penalties,'' of the Enforcement
Policy will reflect this base civil penalty. Table B will apply when
the NRC must determine a civil penalty associated with SL I, II, and
III violations.
Currently, Section 4.3, ``Civil Penalties to Individuals,'' of the
Policy addresses the use of civil penalties to individuals as follows:
Except for individuals subject to civil penalties under Section
206 of the ERA [Energy Reorganization Act], as amended, the NRC will
not normally impose a civil penalty against an individual. However,
Section 234 of the AEA gives the Commission authority to impose
civil penalties on ``any person.'' Furthermore, any person, whether
or not a licensee of the Commission, who violates any regulations
adopted under Section 147, ``Safeguards Information,'' of the AEA
will be subject to the full range of enforcement sanctions,
including civil penalties. Section 11s of the AEA broadly defines
``person'' to include individuals, a variety of organizations, and
their representatives or agents.
The staff proposes to add a new section to the Enforcement Policy
(i.e., Section 4.3.1, ``Individual Civil Penalty for Release of
Safeguards Information Violations'') to provide the guidance necessary
to determine civil penalties for SGI violations. The proposed Section
4.3.1 would read as follows:
4.3.1 Individual Civil Penalty for Release of Safeguards Information
Violations
Civil penalty considerations for violations by individuals who
release SGI and who are not employed by an NRC licensee or
contractor differ from those for licensees and contractors who
release SGI. The NRC will typically not (with the possible exception
of a deliberate release of SGI) issue civil penalties to individuals
for violations of SGI requirements if that individual's employer (a
licensee or contractor) placed the violation in its corrective
action program and has taken, or plans to take, corrective actions
to restore compliance.
Table A in Section 8.0 of this Policy lists the base civil
penalty for individuals who release SGI. The intent of civil
penalties to individuals is to serve as a deterrent; these penalties
generally do not require a base civil penalty as high as that issued
to a licensee
[[Page 54989]]
or contractor. However, willful violations may support a civil
penalty outside of the range listed in Section 8.0. Additionally,
the NRC should consider an individual's reasons for disclosing SGI
(e.g., economic gain or expression of views) and the willingness of
the individual to correct or mitigate the release of information in
determining the final civil penalty amount.
Section 6.13, ``Information Security,'' of this Policy provides
examples of violations to help determine the severity levels of
violations. Also, in determining the appropriate severity level for
the release of SGI, the NRC will consider the type of SGI
information disclosed, its availability to the public, the damage or
vulnerability that the information caused or may cause to the
licensee that possessed ownership of the SGI, and the damage that
the information caused or could cause to public health and safety.
The NRC will also use SGI-related significance determination process
(under the Reactor Oversight Process) information, when available,
to inform the severity level determination.
4. Export/Import of Regulated Material-Violation Examples
Section 2.2.5, ``Export and Import of NRC-Regulated Radioactive
Material and Equipment,'' of the Enforcement Policy currently addresses
the use of enforcement for violations of the agency's export and import
requirements in 10 CFR part 110, ``Export and Import of Nuclear
Equipment and Material.''
The staff proposes a minor revision to the title of Section 2.2.5
for consistency with the current title of 10 CFR part 110, as follows:
``Export and Import of Nuclear Equipment and Material.'' In addition,
the staff will also insert a reference correction in the last sentence,
thus replacing the regulation reference in the last parenthetical
statement of this paragraph, as follows:
2.2.5 Export and Import of Nuclear Equipment and Material
The NRC will normally take enforcement action for violations of
the agency's export and import requirements in 10 CFR part 110,
``Export and Import of Nuclear Equipment and Material,'' for
radioactive material and equipment within the scope of the agency's
export and import licensing authority (10 CFR 110.8, 10 CFR 110.9,
and 10 CFR 110.9a) for (1) Completeness and accuracy of information,
(2) reporting and recordkeeping requirements (10 CFR 110.23, 10 CFR
110.26, 10 CFR 110.50, and 10 CFR 110.54), and (3) adherence to
general and specific licensing requirements (10 CFR 110.20-27 and 10
CFR 110.50).
Also, the current Policy does not contain violation examples for
export and import activities that depict likely SLs that the staff can
use to assess the relative significance of various violations of 10 CFR
part 110. As a result, the staff proposes the following change to
incorporate a new section (Section 6.15, ``Export and Import
Activities'') in the Enforcement Policy to provide example violations
and proposed SLs for export and import activities:
6.15 Export and Import Activities
Several of the following violation examples involve
deliberateness or careless disregard. For those examples, the normal
Enforcement Policy process for discretion to potentially escalate
the severity level of the violation based on willfulness is not
necessary.
a. Severity Level I violations involve, for example:
1. Deliberate misrepresentation of facts, with the knowledge of
a licensee official, that led to the export of licensable and
sensitive equipment or material in quantities of concern to a
destination that, if represented accurately, would not have been
authorized by the NRC (or other authority); or
2. Deliberate misrepresentation of facts that led to
unauthorized individuals obtaining sensitive nuclear equipment or
materials in quantities of concern;
b. Severity Level II violations involve, for example:
1. Failure to provide notice of 10 CFR part 110, Appendix P,
material import as required by 10 CFR 110.50, which, if the notice
had been provided, would have prompted the NRC to take action to
block the import;
2. Misrepresentation of facts in careless disregard of
requirements, with the knowledge of a licensee official, for the
export or import of radioactive or byproduct materials, such as
those involving the completeness or accuracy of the information
that, if represented accurately, would not have been authorized by
the NRC (or other authority); or
3. Inaccurate or incomplete information provided or maintained
that led to unauthorized individuals possessing radioactive
materials
c. Severity Level III violations involve, for example:
1. Failure to submit timely notification of the import of 10 CFR
part 110, Appendix P, material, as required by 10 CFR 110.50;
2. Inaccurate or incomplete information on exports or imports of
radioactive or byproduct materials such that, if the information had
been represented accurately, an activity would not have been
authorized by the NRC (or other authority) or would have resulted in
the NRC reconsidering the authorization of the activity, issuing a
request for additional information (RAI), or conducting an
inspection to resolve the matter;
3. Export of byproduct material in quantities of concern to
individuals/entities not authorized to receive such materials; or
4. Failure to obtain a specific license before the export or
import of any NRC licensable equipment, special nuclear material,
and source or byproduct materials, when required.
d. Severity Level IV violations involve, for example:
1. Failure to submit timely reports as specified in 10 CFR
110.54;
2. Export or import of nuclear equipment or materials in excess
of the limits specified in a specific license or license amendment,
when such activity would have been authorized by the NRC (or other
authority);
3. Export of byproduct material exceeding the possession limits
authorized for the ultimate consignee, not involving a Severity
Level I, II, or III violation;
4. Unauthorized export of foreign-obligated material in
violation of 10 CFR 110.50(b)(3), not involving a Severity Level I,
II, or III violation; or
5. Failure to obtain a specific license to export or import NRC
licensable equipment, special nuclear material, and source or
byproduct materials that are not authorized by the general licenses
in 10 CFR 110.21 through 110.27 and not involving a Severity Level
I, II, or III violation.
5. Civil Penalties for Loss of Control of Regulated Material
On December 18, 2000 (65 FR 79139), the NRC published a notice
amending NUREG-1600, ``General Statement of Policy and Procedure for
NRC Enforcement Actions'' (the Enforcement Policy), to establish
separate base civil penalty amounts for loss, abandonment, or improper
transfer or disposal of sealed sources and devices containing NRC-
licensed material. The intent was to better relate the civil penalty
amount to the costs avoided by the failure to properly dispose of the
source or device.
At that time, the Commission determined that normally a civil
penalty of at least the base civil penalty amount was appropriate for
these types of violations to provide deterrence and an economic
incentive for licensees to expend the necessary resources to ensure
compliance. Such a deterrent measure would also result in an
enforcement action that properly reflected the safety and security
significance of the loss of control of such material.
The normal civil penalty assessment process assigns varying civil
penalty amounts based on, for example, a licensee's past enforcement
history, whether the licensee self-identified the violation, and
whether the licensee took prompt and comprehensive corrective action.
However, the lost source policy, described in Section 2.3.4 of the
Enforcement Policy, stipulates that the NRC will normally assign a
civil penalty of at least the base amount for violations involving the
loss, abandonment, or improper transfer or disposal of radioactive
source material, regardless of the outcome of the normal civil penalty
assessment process. Therefore, the factors that may result in the
mitigation or escalation of a civil penalty for other violations (i.e.,
past enforcement history, identification, and corrective action) have
not typically been considerations for these types of violations.
[[Page 54990]]
Section 2.3.4 of the Enforcement Policy currently addresses the
civil penalties associated with loss of regulated material as follows:
The NRC considers civil penalties for violations associated with
loss of regulated material (i.e., the NRC's lost source policy).
Loss of NRC-regulated material is a significant regulatory and
security concern because of potential unauthorized possession, use,
or overexposure to members of the public. Violations where regulated
radioactive material remains out of the required control of a
licensee for any period of time are dispositioned separately,
regardless of the use, license type, quantity, or type of
radioactive material (see Table of Base Civil Penalties, Tables A
and B, in Section 8.0 of this Policy). Such violations may include,
but are not limited to, for example, the loss, abandonment, improper
transfer, or disposal of a device, source, or other form of
regulated material. Notwithstanding the normal civil penalty
assessment process, in cases where a licensee has lost required
control of its regulated radioactive material for any period of
time, the NRC normally will impose at least a base civil penalty.
However, the Agency may mitigate or escalate a civil penalty amount
based on the merits of a specific case. When appropriate, the NRC
may consider, for example, information concerning the estimated or
actual cost of authorized disposal and/or the actual consequences of
the material remaining out of the control of the licensee.
In accordance with Section 2.3.4 of the current Enforcement Policy,
the NRC may mitigate or escalate the amount of a civil penalty based on
the merits of a specific case. Therefore, even under the current
Enforcement Policy, the NRC may consider information concerning the
estimated or actual cost of authorized disposal and the actual
consequences of the loss, abandonment, or improper transfer or disposal
of the regulated material for cases subject to the lost source policy.
Additionally, even though Section 2.3.4 of the Enforcement Policy
permits the NRC to consider the merits of a specific case when
determining a civil penalty amount, this flexibility has not typically
been exercised for lost source violations. As a result, most violations
involving lost sources that have met the threshold for escalated
enforcement have resulted in civil penalties of at least the base
amount. Tables A and B in Section 8.0 of the Enforcement Policy show
the current base civil penalties for violations involving the loss,
abandonment, or improper transfer or disposal of a sealed source or
device.
In response to the Commission's direction in SRM-SECY-09-190, the
staff is proposing a revision to the Enforcement Policy to remove
language stating that the NRC will assess at least a base civil penalty
for violations involving loss of control of radioactive materials. The
intent is to maintain the existing lost source policy to issue at least
a civil penalty while giving the staff the flexibility to disposition
those cases where a licensee has lost NRC regulated material, but took
immediate action to recover it, in a timely manner, with little or no
risk to the public while the material was not in the licensee's
control. In such cases where loss of control is the issue, rather than
actual lost material, the normal civil penalty assessment process,
described in Section 2.3.4, would be used rather than typically issuing
at least a base civil penalty as required by the current lost source
policy. The staff will revise Section 2.3.4 to indicate that,
notwithstanding the normal civil penalty assessment process, the NRC
may exercise discretion and impose a civil penalty in cases in which a
licensee has lost required control of its regulated radioactive
material. As a result, the staff will revise Section 7.0, ``Glossary,''
of the Enforcement Policy to reflect the proposed changes in the
definition of ``lost source policy'' and will revise Note 3 in Table A
of Section 8.0. The current definition of ``lost source policy'' in
Section 7.0 of the Enforcement Policy states the following:
Lost Source Policy is the policy of the NRC in which a civil
penalty of at least the base civil penalty amount is normally issued
in a case where regulated material is out of the control of the
licensee for any period of time, regardless of the use, licensee
type, quantity, or type of radioactive material (examples include
loss, abandonment, improper transfer, or improper disposal of
regulated material). Violations associated with loss of control of
regulated material normally result in escalated enforcement actions.
Note 3 in Table A of Section 8.0 currently states the following:
These base civil penalty amounts have been determined to be
approximately 3 times the average cost of disposal. For specific
cases, the NRC may adjust these amounts to correspond to 3 times the
actual cost of authorized disposal.
The staff proposes to replace the previously stated paragraph in
Section 2.3.4 of the Policy with the following paragraph:
The NRC considers civil penalties for violations associated with
loss of regulated material (i.e., the NRC's lost source policy). The
loss of NRC-regulated material is a significant regulatory and
security concern because of the potential unauthorized possession or
use of the material and because of the potential for overexposure to
members of the public from its misuse. Such violations may include
but are not limited to, for example, the loss, abandonment, improper
transfer, or improper disposal of a device, source, or other form of
regulated material. Notwithstanding the normal civil penalty
assessment process, in cases where a licensee has lost required
control of its regulated radioactive material, the NRC may exercise
discretion and impose a civil penalty. However, the agency may
mitigate or escalate a civil penalty amount based on the merits of a
specific case. When appropriate, the NRC may consider, for example,
information on the estimated or actual cost of authorized disposal
and the actual consequences of the material remaining out of the
control of the licensee, radiation workers, or the environment.
Normally, the NRC will not apply the lost source policy to generally
licensed devices that are not required to be registered in
accordance with 10 CFR 31.5(c)(13)(i). The NRC will continue to
apply the normal Enforcement Policy in those cases that require the
application of a civil penalty.
As a result of this proposed change in Section 2.3.4, the staff
proposes the following change to the definition of ``lost source
policy'' in Section 7.0:
Lost Source Policy is the policy of the NRC in which a civil
penalty may be issued for violations resulting in regulated source
material being out of the control of the licensee regardless of the
use, license type, quantity, or type of regulated material (e.g.,
loss, abandonment, improper transfer, or improper disposal of
regulated material).
The staff proposes the following change to Note 3 in Table A of
Section 8.0:
These base civil penalty amounts have been determined to be
approximately 3 times the average cost of disposal. For specific
cases, the NRC may adjust these amounts to correspond to the
estimated or actual cost of authorized disposal for the particular
material in question.
In addition, the staff will revise the Enforcement Manual to
clarify circumstances that may warrant mitigation (or escalation) of
the base civil penalty amount for violations involving the loss of
radioactive material. Further, the staff will add language to indicate
that the NRC should consider escalating the civil penalty above the
base amount for cases involving willfulness or that resulted in actual
safety consequences or both.
III. Procedural Requirements
Paperwork Reduction Act
This proposed policy statement does not contain new or amended
information collection requirements subject to the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.). Existing requirements were
approved by the Office of Management and Budget, approval number 3150-
0136.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond
[[Page 54991]]
to, a request for information or an information collection requirement
unless the requesting document displays a currently valid OMB control
number.
Congressional Review Act
In accordance with the Congressional Review Act (5 U.S.C. 801-808),
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.
For the Nuclear Regulatory Commission.
Dated at Rockville, MD, this 29th day of August 2011.
Roy P. Zimmerman,
Director, Office of Enforcement.
[FR Doc. 2011-22646 Filed 9-2-11; 8:45 am]
BILLING CODE 7590-01-P