Enforcement of Regulatory Guides
HPPOS-113 PDR-9111210260
Title: Enforcement of Regulatory Guides
See the memorandum from D. Thompson to J. P. O'Reilly (and
others) dated February 17, 1977. OELD advises that if
licensee Regulatory Guides state that the intent of the
Regulatory Guide will be accomplished or that the licensee
will generally follow the guide, IE can not enforce against
such statements except in rare cases where conditions of
noncompliance are obvious.
Problems with enforcement have been encountered by Regions
with respect to licensees committing to Regulatory Guides
in Safety Analysis Reports or security plans in such a
manner as to be not legally binding. Licensees may state
in their plan that they will accomplish certain functions
according to the "intent" of a Regulatory Guide. The
"intent" of the Guide, and whether the licensee met the
"intent", may be subject to interpretation by inspectors
and licensees. The Executive Legal Director advises that
if a licensee states in their plan that the "intent" of the
guide will be accomplished, or that they will "generally"
follow the guide, enforcement against such loosely worded
statements can not be made except when conditions of
noncompliance are clearly obvious. Enforcement can be made
against those sections of the Regulatory Guides referenced
in the Regulations as "shall", but enforcement can not be
made against those sections which are recommended "should"
or allowed as optional "may".
The position of IE and the Legal Staff is that Licensing
should assure that those functions which the licensee must
perform be stated clearly in the requirement to assure that
they are enforceable. Therefore, the Regulatory Guides
should adopt standard terms such as "shall" be accomplished
(meaning required), "should" be accomplished (meaning
recommended), and "may" be accomplished (permissive). Such
licensing functions, however, will likely require legal
review. It is requested that specific matters involving
enforcement problems encountered during inspections be
forwarded to IE Headquarters so that they can be brought to
the attention of Licensing.
Regulatory references: Regulatory Guides
Subject codes: 12.7
Applicability: Reactors