[Federal Register Volume 73, Number 176 (Wednesday, September 10, 2008)]
[Notices]
[Pages 52705-52707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20972]


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NUCLEAR REGULATORY COMMISSION

[NRC-2008-0486]


NRC Enforcement Policy: Extension of Discretion Period of Interim 
Enforcement Policy

AGENCY: U.S. Nuclear Regulatory Commission.

ACTION: Policy statement: Revision.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is revising the 
NRC ``Interim Enforcement Policy Regarding Enforcement Discretion for 
Certain Fire Protection Issues'' (Title 10 of the Code of Federal 
Regulations (10 CFR) 50.48 ``Fire Protection''), which will allow a 
licensee the option to request an extended enforcement discretion 
period if they are pursuing transition to 10 CFR 50.48(c), ``National 
Fire Protection Association Standard NFPA 805.''

DATES: This revision is effective September 10, 2008. Please submit any 
comments on this revision to the Enforcement Policy on or before 
October 27, 2008.

ADDRESSES: You may submit comments by any one of the following methods. 
Comments submitted in writing or in electronic form will be made 
available for public inspection. 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.
    Federal e-Rulemaking Portal: Go to http://www.regulations.gov and 
search for documents filed under Docket ID [NRC-2008-0486]. Address 
questions about NRC dockets to Carol Gallagher, 301-415-5905; e-mail 
[email protected].
    Mail comments to: Michael T. Lesar, Chief, Rulemaking, Directives, 
and Editing Branch, Division of Administrative Services, Office of 
Administration, Mail Stop: T6D59, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001.
    Hand deliver comments to: 11555 Rockville Pike, Rockville, MD 
20852, between 7:30 a.m. and 4:15 p.m., on Federal workdays.
    You can access publicly available documents related to this 
document 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, Public 
File Area O1 F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland.
    NRC's Agencywide Documents Access and Management System (ADAMS): 
Publicly available documents created or received at the NRC are 
available electronically at the NRC's Electronic Reading Room 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 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 NRC maintains the current Enforcement Policy on its Web site at 
http://www.nrc.gov. Mouse over ``Public Meetings and Involvement'' on 
the far right, then select ``Enforcement'' from the drop-down menu. 
Under the bolded ``Comments'' section select ``Enforcement Policy''.

FOR FURTHER INFORMATION CONTACT: Cynthia Carpenter, Director, Office of 
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001, 301-415-2741, e-mail [email protected].

SUPPLEMENTARY INFORMATION: On June 16, 2004 (69 FR 33536), the NRC 
published a final rule in the Federal Register amending 10 CFR 50.48, 
``Fire Protection.'' This rule became effective July 16, 2004 and 
allows licensees to adopt 10 CFR 50.48(c), a risk-informed, 
performance-based alternative to their current fire protection 
requirements in 10 CFR 50.48(b). The NRC revised its Enforcement Policy 
(June 16, 2004; 69 FR 33684) to provide interim enforcement discretion 
during a ``transition'' period. The interim enforcement discretion 
policy includes provisions to address the noncompliance identified 
during the licensee's transition process and existing identified 
noncompliances.
    The discretion period would start when the licensee informs the NRC 
of a transition start date in a Letter of Intent (LOI) to transition to 
the National Fire Protection Association Standard 805 (NFPA 805). The 
discretion period would remain in effect for up to two years for the 
licensee to submit to the NRC a License Amendment Request (LAR) to 
transition to NFPA 805, and the discretion period would continue until 
the NRC dispositioned the LAR. Many licensees requested 3 or more years 
for the transition period. The basis for the extended discretion 
included the following: (1) The need for additional time to properly 
evaluate existing fire analysis; (2) a lack of resources; (3) the need 
for additional time to develop fire probabilistic risk assessments 
(PRAs); and (4) the need for additional time to use lessons learned 
from the pilot plants. On April 18, 2006 (71 FR 19905), the NRC revised 
the Interim Enforcement Policy to extend the enforcement discretion 
period from two to three years.
    On February 2, 2007, the Nuclear Energy Institute (NEI) submitted a 
request for additional discretion for sites transitioning to NFPA 805 
(Agencywide Documents Access and Management System (ADAMS) Accession 
No. ML070460550). NEI stated that the extension of the enforcement 
discretion period would allow an orderly transition process.
    NEI states transitioning licensees are compelled to complete 
portions of the transition in advance of the pilot plants due to the 
enforcement discretion deadline. This could result in creating 
substantial risk of rework and inconsistency among the transitioning 
licensees. The following issues formed the base for NEI's request that 
the staff reexamine the Interim Enforcement Policy:
    (1) Timing of the pilots schedule versus the nonpilot plant 
discretion deadline.
    (2) Delay of the industry fire PRA standard and the NEI peer review 
guidance.
    (3) Limited fire PRA expertise available.
    (4) Burden on NRC staff to conduct timely reviews of concurrent 
LARs.
    The NRC is revising the Enforcement Policy to extend, on a case-by-
case basis, the current 3-year enforcement discretion period. The NRC 
will grant additional time extensions depending on the progress the 
licensee has made in the transition effort. The additional period of 
discretion would end 6 months after the date of the safety evaluation 
approving the second pilot plant LAR review.
    Nuclear safety is the first consideration in any request for 
additional enforcement discretion. NRC requires all transitioning 
licensees to fully maintain their approved fire protection program. 
Transitioning licensees must address all nonconforming conditions with 
adequate compensatory measures to

[[Page 52706]]

assure adequate fire safety. The NRC will continue to apply normal 
inspection and enforcement to all plants that are not actively 
transitioning to 10 CFR 50.48(c).

Paperwork Reduction Act

    This 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 (OMB), 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, collection of information, unless it displays a currently 
valid OMB control number.

Congressional Review Act

    In accordance with the Congressional Review 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 to read as 
follows:
NRC Enforcement Policy
* * * * *
Interim Enforcement Policies
* * * * *
Interim Enforcement Policy Regarding Enforcement Discretion for Certain 
Fire Protection Issues (10 CFR 50.48)
    This section sets forth the interim enforcement policy that the 
U.S. Nuclear Regulatory Commission (NRC) will follow to exercise 
enforcement discretion for certain noncompliances of requirements in 10 
CFR 50.48, ``Fire protection,'' (or fire protection license conditions) 
that are identified as a result of the transition to a new risk-
informed, performance-based fire protection approach included in 
paragraph (c) of 10 CFR 50.48 and for certain existing identified 
noncompliances that reasonably may be resolved by compliance with 10 
CFR 50.48(c). Paragraph (c) allows reactor licensees to voluntarily 
comply with the risk informed, performance-based fire protection 
approaches in National Fire Protection Association Standard 805 (NFPA 
805), ``Performance-Based Standard for Fire Protection for Light Water 
Reactor Electric Generating Plants,'' 2001 Edition (with limited 
exceptions stated in the rule language).
    For those noncompliances that the NRC identifies during the 
licensee's transition process, this enforcement discretion policy will 
be in effect for up to 3 years from the date specified by the licensee 
in their letter of intent to adopt the requirements in 10 CFR 50.48(c). 
The enforcement discretion will continue to be in place, without 
interruption, until NRC approval of the license amendment request to 
transition to 10 CFR 50.48(c).
    An additional period of enforcement discretion may be granted on a 
case-by-case basis, if a licensee has made substantial progress in its 
transition effort. This additional period of discretion, if granted, 
would end 6 months after the date of the safety evaluation approving 
the second pilot plant \1\ LAR review.
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    \1\ The NRC accepted the request from both Duke Power 
(ML051080005) and Progress Energy (ML052140391) to allow Oconee 
Nuclear Power Station and Shearon Harris Nuclear Power Station 
respectively, to become pilot NPFA 805 plants.
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    The NRC will assess ``substantial progress'' based on 
accomplishment of tasks that are not resource-limited with respect to 
fire probabilistic risk assessment (PRA) technical expertise (e.g., 
classical fire protection transition, deterministic nuclear safety 
performance criteria transition, non-power operational transition, 
radioactive release transition, development of the NFPA 805 monitoring 
program, operator manual action transition to NFPA 805 recovery 
actions). In order for the NRC to adequately evaluate the transition 
progress, licensees that request enforcement discretion beyond the 
three years currently available should make their request to the NRC in 
writing at least 3 months before the expiration of the 3-year 
discretion period and compile or submit the following information:
     Compile, for on-site NRC audit/inspection, a list of all 
fire protection-related noncompliances and the related compensatory 
measures for those noncompliances.
     Document, for onsite NRC audit/inspection, that each 
Operator Manual Action put in place as compensatory measures are 
feasible and reliable, in accordance with staff provided guidance in 
Regulatory Issue Summary 2005-07, ``Compensatory Measures to Satisfy 
the Fire Protection Program Requirements.''
     Submit a description of the physical modifications 
performed, if any, to address existing risk-significant fire protection 
issues.
     Submit a status report of the transition, including a 
schedule of milestones for completing the fire PRA. The status report 
should be broken down into the following major areas:
    [cir] Classical fire protection transition (in accordance with NFPA 
805 Chapter 3).
    [cir] Nuclear Safety Performance Criteria transition (in accordance 
with NFPA 805 chapters 1, 2 and 4).
    [cir] Nonpower operational transitions.
    [cir] NFPA 805 monitoring program.
    If the NRC determines that a licensee has not made sufficient 
progress during the transition to NFPA 805, the NRC will deny the 
request for an extension of enforcement discretion.
    If, after submitting the letter of intent to comply with 10 CFR 
50.48(c) and before submitting the license amendment request, the 
licensee decides not to complete the transition to 10 CFR 50.48(c), the 
licensee must submit a letter stating its intent to retain its existing 
license basis and withdrawing its letter of intent to comply with 10 
CFR 50.48(c). After the licensee's withdrawal from the transition 
process, the staff, as a matter of practice, will not take enforcement 
action against any noncompliance that the licensee corrected during the 
transition process and will on a case-by-case basis, consider 
refraining from taking action if reasonable and timely corrective 
actions are in progress (e.g., an exemption has been submitted for NRC 
review). Noncompliances that the licensee has not corrected, as well as 
noncompliances identified after the date of the above withdrawal 
letter, will be dispositioned in accordance with normal enforcement 
practices.

A. Noncompliances Identified During the Licensee's Transition Process

    Under this interim enforcement policy, enforcement action normally 
will not be taken for a violation of 10 CFR 50.48(b) (or the 
requirements in a fire protection license condition) involving a 
problem such as in engineering, design, implementing procedures, or 
installation, if the violation is documented in an inspection report 
and it meets all of the following criteria:
    (1) It was licensee-identified, as a result of its voluntary 
initiative to adopt the risk-informed, performance-based fire 
protection program included under 10 CFR 50.48(c) or, if the NRC 
identifies the violation, it was likely in the NRC staff's view that 
the licensee would have identified the violation in light of the 
defined scope, thoroughness, and schedule of the licensee's transition 
to 10 CFR 50.48(c) provided the schedule

[[Page 52707]]

reasonably provides for completion of the transition within 3 years of 
the date specified by the licensee in their letter of intent to 
implement 10 CFR 50.48(c) or other period granted by NRC;
    (2) It was corrected or will be corrected as a result of completing 
the transition to 10 CFR 50.48(c). Also, immediate corrective action 
and/or compensatory measures are taken within a reasonable time 
commensurate with the risk significance of the issue following 
identification (this action should involve expanding the initiative, as 
necessary, to identify other issues caused by similar root causes);
    (3) It was not likely to have been previously identified by routine 
licensee efforts such as normal surveillance or quality assurance (QA) 
activities; and
    (4) It was not willful.
    The NRC may take enforcement action when these conditions are not 
met or when a violation that is associated with a finding of high 
safety significance is identified.
    While the NRC may exercise discretion for violations meeting the 
required criteria where the licensee failed to make a required report 
to the NRC, a separate enforcement action will normally be issued for 
the licensee's failure to make a required report.

B. Existing Identified Noncompliances

    In addition, licensees may have existing identified noncompliances 
that could reasonably be corrected under 10 CFR 50.48(c). For these 
noncompliances, the NRC is providing enforcement discretion for the 
implementation of corrective actions until the licensee has 
transitioned to 10 CFR 50.48(c) provided that the noncompliances meet 
all of the following criteria:
    (1) The licensee has entered the noncompliance into their 
corrective action program and implemented appropriate compensatory 
measures;
    (2) The noncompliance is not associated with a finding that the 
Reactor Oversight Process Significance Determination Process would 
evaluate as Red, or it would not be categorized at Severity Level I;
    (3) It was not willful; and
    (4) The licensee submits a letter of intent by December 31, 2005, 
stating its intent to transition to 10 CFR 50.48(c).
    After December 31, 2005, as addressed in (4) above, this 
enforcement discretion for implementation of corrective actions for 
existing identified noncompliances will not be available and the 
requirements of 10 CFR 50.48(b) (and any other requirements in fire 
protection license conditions) will be enforced in accordance with 
normal enforcement practices. However, licensees that submit letters of 
intent to transition to 10 CFR 50.48(c) with existing noncompliances 
will have the option to implement corrective actions in accordance with 
the new performance-based regulation. All other elements of the 
assessment and enforcement process will be exercised even if the 
licensee submits its letter of intent before the NRC issues its 
enforcement action for existing noncompliances.

    Dated at Rockville, Maryland, this 4th day of September, 2008.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
 [FR Doc. E8-20972 Filed 9-9-08; 8:45 am]
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