[Federal Register Volume 76, Number 133 (Tuesday, July 12, 2011)]
[Rules and Regulations]
[Pages 40777-40779]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17291]



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  Federal Register / Vol. 76, No. 133 / Tuesday, July 12, 2011 / Rules 
and Regulations  

[[Page 40777]]



 NUCLEAR REGULATORY COMMISSION

10 CFR Part 50

RIN 3150-AG48
[NRC-2008-0486]


Interim Enforcement Policy for Certain Fire Protection Issues

AGENCY: Nuclear Regulatory Commission.

ACTION: Policy statement; revision.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or the Commission) 
is revising its interim Enforcement Policy on enforcement discretion 
for certain fire protection issues to extend the enforcement discretion 
to correspond with a submittal schedule for new license amendment 
requests (LARs). This interim policy affects licensees that are 
transitioning to use the National Fire Protection Association Standard 
805, ``Performance-Based Standard for Fire Protection for Light Water 
Reactor Electric Generating Plants'' (NFPA 805).

DATES: This policy revision is effective July 12, 2011. The NRC is not 
soliciting comments on this revision to its Enforcement Policy.

ADDRESSES: You can access publicly available documents related to this 
policy statement 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, O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, 
Maryland 20852.
     NRC's Agencywide Documents Access and Management System 
(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 available through ADAMS under Accession No. 
ML093480037.
     Federal Rulemaking Web Site: Supporting materials related 
to this policy statement can be found at http://www.regulations.gov by 
searching on Docket ID NRC-2008-0486.
    The NRC maintains the Enforcement Policy on its Web site at http://www.nrc.gov/about-nrc/regulatory/enforcement/enforce-pol.html.

FOR FURTHER INFORMATION CONTACT: Gerry Gulla, Office of Enforcement, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; 
telephone: 301-415-2872; e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On June 16, 2004, the NRC revised its Enforcement Policy to include 
an interim Enforcement Policy applicable to licensees that are 
transitioning to the risk-informed, performance-based fire protection 
requirement in NFPA 805. However, because of the complexity and 
evolving issues related to fire protection, the NRC revised its interim 
Enforcement Policy several times. The following table lists the 
corresponding Federal Register notices and provides brief descriptions 
of the associated revisions.

----------------------------------------------------------------------------------------------------------------
         Federal Register notice                      Date                         Brief description
----------------------------------------------------------------------------------------------------------------
69 FR 33684.............................  June 16, 2004..............  Describes the initial interim Enforcement
                                                                        Policy on fire protection.
70 FR 2662..............................  January 14, 2005...........  Revises the submittal date for licensees
                                                                        to receive enforcement discretion for
                                                                        existing identified fire protection
                                                                        program noncompliant issues.
71 FR 19905.............................  April 18, 2006.............  Extends the enforcement discretion from 2
                                                                        years to 3 years from the date as
                                                                        specified in the licensee's letter of
                                                                        intent to transition to NFPA 805.
73 FR 52705.............................  September 10, 2008.........  Grants additional enforcement discretion
                                                                        so that licensees can use lessons
                                                                        learned from the pilot process.
----------------------------------------------------------------------------------------------------------------

    On March 4, 2011, the NRC published SECY-11-0033 (ADAMS Accession 
No. ML11083A061), ``Proposed NRC Staff Approach to Address Resource 
Challenges Associated with Review of a Large Number of NFPA 805 License 
Amendment Requests.'' In SECY-11-0033, the staff proposed to increase 
the current resources for the NFPA 805 LARs and to work with industry 
to develop a schedule for staggering the LAR submittals. In SRM-SECY-
11-0033, dated April 20, 2011 (ADAMS Accession No. ML111101452), the 
Commission approved this staggered approach and instructed the staff to 
submit a Commission paper with an attached proposed revision to the 
NFPA 805 interim Enforcement Policy for Commission approval.

II. Discussion

    Initially, the NRC expected to receive approximately 16 LARs in 
2007. However, because of the unforeseen complexity of the 
transitioning process, the interim Enforcement Policy has undergone a 
number of revisions that have changed the submittal due date for many 
licensees. These revisions have created a ``grouping effect,'' and now 
the NRC expects approximately 23 LARs by the end of June 2011. The 
Commission has approved the use of additional resources for NFPA 805 
LAR reviews and working with industry to develop and create a staggered 
LAR submittal schedule. The NRC held a public meeting on April 14, 
2011, during which the staff and stakeholders discussed the staggered 
approach. The meeting focused on (1) The staggered approach to LAR 
submittals, (2) identifying industry considerations for staggered LAR 
submittals, and (3)

[[Page 40778]]

discussing the staff's LAR review approach and adjustment to monthly 
status meetings.
    An industry working group is currently generating a list of 
transitioning licensees with suggested corresponding LAR submittal 
dates necessary to support this staggered submittal approach. Once the 
working group completes the list, the staff will review and decide 
whether to approve it. The NRC expects the sequencing of the submittals 
to result in approximately seven LARs by July 1, 2011; 10 additional 
LARs by July 1, 2012; another 10 LARs by July 1, 2013; and the 
remainder by July 1, 2014. The NRC will require licensees, with the 
exception of the first group of licensees scheduled to submit around 
July 1, 2011, to submit a letter by June 29, 2011, that acknowledges 
their new commitment date. Enforcement discretion will continue while 
the staff is processing and responding to the commitment letters.
    Once this process is completed, the NRC will hold the licensee 
accountable for submitting an acceptable LAR on the date as stated in 
its commitment letter. A failure on the part of the licensee to submit 
an acceptable LAR on or before the NRC approved date will result in a 
loss of enforcement discretion. However, licensees with appropriate 
justification and staff approval may regain enforcement discretion once 
an acceptable LAR is submitted. If enforcement discretion is not 
granted, any identified noncompliance with the requirements of Title 10 
of the Code of Federal Regulations (10 CFR) 50.48(b) (or the 
requirements in a fire protection license condition) may be subject to 
enforcement actions. While the LAR is under review, enforcement 
discretion will continue as long as the noncompliances meet the 
criteria as stated in the policy. The NRC staff will maintain the 
number of scheduled reviews per year. For example, the staff will work 
with licensees, if necessary, to amend the submittal schedule to 
substitute one site for another if a submitted LAR does not pass the 
NRC's acceptance review.
    Nuclear safety is the first consideration in any request for 
additional enforcement discretion. The NRC will continue to apply 
normal inspection schedules and processes during the transition process 
(including staggering the LAR submittals) to ensure that licensees 
maintain their existing fire protection program licensing basis. The 
approved fire protection program uses numerous levels of defense in 
depth with regard to fire protection. Most noncompliance issues only 
affect one level of defense in depth, leaving two or more ``layers'' of 
protection to provide significant safety margin. Licensees must address 
all nonconforming conditions with adequate compensatory measures to 
ensure fire safety with sufficient defense-in-depth. As a result, the 
plant preserves nuclear safety because the licensee implements 
compensatory measures that offset the risk of the nonconforming 
conditions in accordance with the approved fire protection program. 
Therefore, extending enforcement discretion should not significantly 
impact fire safety.

Procedural Requirements

Paperwork Reduction Act

    This Policy Statement contains and references information 
collection requirements that are subject to the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.). These requirements were approved by 
the Office of Management and Budget, under approval number 3150-0136.

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a request for information or an information collection 
requirement unless the requesting documents 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 OMB's Office of Information and Regulatory 
Affairs.
    Accordingly, the NRC has revised its Enforcement Policy to read as 
follows:

NRC Enforcement Policy

9.1 Enforcement Discretion for Certain Fire Protection Issues (10 CFR 
50.48)
    This section contains the interim Enforcement Policy that the NRC 
will follow to exercise enforcement discretion for certain 
noncompliances with the requirements in Title 10 of the Code of Federal 
Regulations (10 CFR) 50.48, ``Fire Protection'' (or fire protection 
license conditions), that are identified as a result of a licensee's 
transition to the new risk-informed, performance-based fire protection 
approach included in 10 CFR 50.48(c) and for certain existing 
identified noncompliances that reasonably may be resolved by compliance 
with 10 CFR 50.48(c). Under 10 CFR 50.48(c), reactor licensees may 
voluntarily comply with the risk-informed, performance-based fire 
protection approaches in National Fire Protection Association Standard 
805, ``Performance-Based Standard for Fire Protection for Light Water 
Reactor Electric Generating Plants'' (NFPA 805), 2001 Edition (with 
limited exceptions stated in the rule language).
    Enforcement discretion may apply to noncompliances identified 
during the licensee transition process. This timeframe starts on the 
date as specified in the licensee's letter of intent to transition to 
10 CFR 50.48(c) and ends (1) 3 years after that initial start date or 
(2) on the date as specified in the licensee's commitment letter, as 
amended and approved by the NRC. If the licensee is unable to submit 
its license amendment request (LAR) within the timeframe stated above, 
it will lose its enforcement discretion. However, licensees with 
appropriate justification and staff approval may regain enforcement 
discretion once an acceptable \1\ LAR is submitted. If enforcement 
discretion is not granted, any identified noncompliances may be subject 
to enforcement action.
---------------------------------------------------------------------------

    \1\ The agency will use the Office of Nuclear Reactor 
Regulation's (NRR) Office Instruction, LIC-109, ``Acceptance Review 
Procedures,'' to evaluate the LAR for acceptability.
---------------------------------------------------------------------------

    Once an acceptable LAR is submitted, enforcement discretion for 
previously identified noncompliances \2\ and any newly identified 
noncompliances discovered either by the licensee or the NRC while the 
LAR is under review will continue to be in place until the NRC 
dispositions the LAR.\3\ If the NRC finds the amendment request 
unacceptable but gives the licensee an opportunity to provide 
supplemental information, the enforcement discretion will continue 
while the licensee prepares the supplemental information, provided that 
it submits the information within the timeframe stipulated by the 
staff. If the NRC finds the amendment acceptable after receipt of the 
supplemental information, enforcement discretion will continue until 
the NRC dispositions the amendment. A licensee that submits an LAR that 
is not acceptably supplemented or an LAR that was initially 
characterized as unacceptable with no opportunity to provide 
supplemental information will lose its enforcement discretion. However, 
licensees with appropriate justification and NRC approval may

[[Page 40779]]

regain enforcement discretion once an acceptable LAR is submitted. If 
enforcement discretion is not granted, any indentified noncompliances 
may be subject to enforcement action.
---------------------------------------------------------------------------

    \2\ These are noncompliances that were previously granted 
enforcement discretion before submittal of the LAR.
    \3\ Noncompliances that are identified during the LAR review 
process and that are determined to be either associated with a 
finding of high safety significance or willful will be considered 
for potential enforcement action.
---------------------------------------------------------------------------

    Once the NRC accepts an LAR for licensing review, the timeliness 
and quality of the responses to requests for additional information 
(RAI) will significantly affect the LAR review schedule. Licensees that 
do not respond in a timely fashion to staff RAIs or do not provide 
quality RAI responses may lose enforcement discretion.
    If, after submitting the letter of intent to comply with 10 CFR 
50.48(c) and before submitting the LAR, a 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 licensing 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 NRC, 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). The NRC will 
disposition noncompliances that the licensee has not corrected, and 
noncompliances that were identified after the date of the withdrawal 
letter, in accordance with normal enforcement practices.
a. Noncompliances Identified During the Licensee's Transition Process
    Under this interim Enforcement Policy, the NRC will normally not 
take enforcement action for a violation of 10 CFR 50.48(b) (or the 
requirements in a fire protection license condition) involving a 
problem in an area such as engineering, design, implementing 
procedures, or installation if the violation is documented in an 
inspection report and meets all of the following criteria:
    1. The licensee identified the violation as a result of a voluntary 
initiative to adopt the risk-informed, performance-based fire 
protection program under 10 CFR 50.48(c), or, if the NRC identified the 
violation, the NRC found it likely that the licensee would have 
identified the violation in light of the defined scope, thoroughness, 
and schedule of its transition to 10 CFR 50.48(c).
    2. The licensee corrected the violation or will correct the 
violation after completing its transition to 10 CFR 50.48(c). Also, the 
licensee took immediate corrective action or compensatory measures or 
both 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. Routine licensee efforts, such as normal surveillance or quality 
assurance activities, were not likely to have previously identified the 
violation.
    4. The violation was not willful.
    The NRC may take enforcement action when the licensee has not met 
these conditions or when a violation that is associated with a finding 
of high safety significance is identified.
    Although the NRC may exercise discretion for violations meeting the 
required criteria, if the licensee failed to make a required report to 
the agency, then it will normally issue a separate enforcement action 
for the licensee's failure to make the required report.
b. Existing Identified Noncompliances
    In addition, the licensee 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 made the transition to 10 CFR 50.48(c), provided that the 
noncompliances meet all of the following criteria:
    1. The licensee has entered the noncompliance into its 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 otherwise it would not be categorized at Severity 
Level I.
    3. The noncompliance was not willful.
    4. The licensee submitted a letter of intent by December 31, 2005, 
stating its intent to transition to 10 CFR 50.48(c).

    Dated at Rockville, MD, this 5th day of July 2011.

    For the Nuclear Regulatory Commission.
Andrew L. Bates,
Acting Secretary of the Commission.
[FR Doc. 2011-17291 Filed 7-11-11; 8:45 am]
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