NRC Enforcement Policy, 54986-54991 [2011-22646]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 76, Number 172 (Tuesday, September 6, 2011)]
[Proposed Rules]
[Pages 54986-54991]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-22646]


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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.

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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 https://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: Carol.Gallagher@nrc.gov.
     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: Doug.Starkey@nrc.gov.

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, https://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 https://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 
pdr.resource@nrc.gov. 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 https://www.regulations.gov by searching on 
Docket ID NRC-2011-0209.
    The NRC maintains the Enforcement Policy on its Web site at https://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