[Federal Register Volume 69, Number 115 (Wednesday, June 16, 2004)]
[Notices]
[Pages 33684-33686]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 04-13523]


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NUCLEAR REGULATORY COMMISSION

[NUREG-1600]


NRC Enforcement Policy

AGENCY: Nuclear Regulatory Commission.

ACTION: Policy statement: revision.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is revising its 
General Statement of Policy and Procedure for NRC Enforcement Actions 
(NUREG-1600) (Enforcement Policy or Policy) to include an interim 
enforcement policy regarding enforcement discretion for certain issues 
involving fire protection programs at operating nuclear power plants.

DATES: This revision is effective June 16, 2004. Comments on this 
revision to the Enforcement Policy may be submitted on or before July 
16, 2004.

ADDRESSES: Submit written comments to: Michael T. Lesar, Chief, Rules 
and Directives 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, Maryland, between 7:30 a.m. and 4:15 p.m., Federal 
workdays. Copies of comments received may be examined at the NRC Public 
Document Room, Room O1F21, 11555 Rockville Pike, Rockville, MD. You may 
also e-mail comments to nrcep@nrc.gov.
    The NRC maintains the current Enforcement Policy on its Web site at 
http://www.nrc.gov, select What We Do, Enforcement, then Enforcement 
Policy.

FOR FURTHER INFORMATION CONTACT: Joseph Birmingham, Office of Nuclear 
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, (301) 415-2829, e-mail (JLB4@nrc.gov) or Ren[eacute]e 
Pedersen, Office of Enforcement, U.S. Nuclear Regulatory Commission, 
Washington DC 20555-0001, (301) 415-2742, e-mail (RMP@nrc.gov).

SUPPLEMENTARY INFORMATION: In a separate action published in today's 
Federal Register, the NRC is revising its regulations in 10 CFR 50.48 
governing fire protection at operating nuclear power plants. The 
revision adds a new paragraph (c) to Sec.  50.48 that allows reactor 
licensees to voluntarily comply with the risk-informed, performance-
based fire protection approaches in National Fire Protection 
Association (NFPA) 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), as an alternative to complying with Sec.  50.48(b) or the 
requirements in their fire protection license conditions.
    As part of the transition to 10 CFR 50.48(c), licensees will 
establish the fundamental fire protection program identified in NFPA 
805. Licensees will perform a plant-wide assessment to identify fire 
areas and fire hazards and evaluate compliance with their existing fire 
protection licensing basis. This fire protection assessment is beyond 
the normal licensee review of their fire protection program.
    During the assessment process, licensees may identify 
noncompliances with their existing fire protection licensing basis 
which must be evaluated to restore compliance with the existing plant 
requirements or to establish compliance with a performance-based 
approach under NFPA 805. These noncompliances would normally be 
identified by the licensee as part of the above fire protection 
assessment, entered into the licensee's corrective action program, and 
dispositioned for corrective action, including any compensatory 
measures. The NRC believes it is appropriate to provide incentives for 
licensees initiating efforts to identify and correct subtle violations 
that are not likely to be identified by routine efforts. Therefore, the 
NRC is issuing an interim policy that provides enforcement discretion 
for certain fire protection noncompliances identified as part of the 
transition to 10 CFR 50.48(c).
    For these noncompliances discussed above, the enforcement 
discretion period would begin upon receipt of a letter of intent from 
the licensee stating their intention to adopt the risk-informed, 
performance-based fire protection program under 10 CFR 50.48(c) and 
providing a schedule for the transition to 10 CFR 50.48(c). The 
enforcement discretion period would be in effect for up to two years 
under the letter of intent and, if the licensee submits a license 
amendment request to complete the transition to 10 CFR 50.48(c), will 
continue until the NRC approval of the license amendment request is 
completed.
    If the licensee decides not to complete its transition to 10 CFR 
50.48(c), the licensee must submit a letter stating their intention to 
retain their existing license basis and withdrawing their letter of 
intent. Enforcement discretion would be provided for those violations 
that were identified under the letter of intent to transition to NFPA 
805 provided those violations are resolved under the existing licensing 
basis and meet the criteria included in this policy for these 
violations. Violations identified after the date of the withdrawal 
letter will be dispositioned in accordance with normal enforcement 
practices.
    Additionally, licensees who plan to comply with 20 CFR 50.48(c) may 
have existing identified noncompliances which could reasonable be 
corrected under 20 CFR 50.48(c). For these noncompliances, the NRC is 
providing enforcement discretion for the implementation of corrective 
action so that those noncompliances may be corrected in accordance with 
the requirements of 10 CFR 50.48(c). Those noncompliances must be 
entered into the licensee's corrective action program, must not be 
associated with findings that the Reactor Oversight Process 
Significance Determination Process would evaluate as Red, or would not 
be categorized at Severity Level l, and appropriate compensatory 
measures have been taken. To prevent undue delay in either restoring 
these existing noncompliances to 10 CFR 50.48(b) (and any other 
requirements in fire protection license conditions) or establishing 
compliance to 10 CFR 50.48(c), the letter of intent must be submitted 
within 6 months of the effective date of the final rule amending 10 CFR 
50.48.
    This interim enforcement discretion policy is consistent with the 
long-standing policy included in Section

[[Page 33685]]

VII.B.3, ``Violations Involving Old Design Issues,'' of the Enforcement 
Policy addressing discretion when licensees voluntarily undertake a 
comprehensive review and assessment. This exercise of discretion 
provides appropriate incentives for licensees initiating efforts to 
identify and correct subtle violations that are not likely to be 
identified by routine efforts.
    However, the NRC may take enforcement action when a violation that 
is associated with a finding of high safety significance is identified. 
The staff intends to normally rely on the licensee's risk assessment of 
an issue when making a decision on whether to exercise enforcement 
discretion under this policy.
    Accordingly, the proposed revision to the NRC Enforcement Policy 
reads as follows:

General Statement of Policy and Procedure for NRC Enforcement Actions

* * * * *

Interim Enforcement Policies

Interim Enforcement Policy Regarding Enforcement Discretion for Certain 
Fitness-for-Duty Issues (10 CFR Part 26)

* * * * *

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 NRC 
will follow to exercise enforcement discretion for certain violations 
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 (NFPA) 
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 identified during the licensee's 
transition process, this enforcement discretion policy will be in 
effect for up to two years from the date of a licensee's letter of 
intent to adopt the requirements in 10 CFR 50.48(c) and will continue 
to be in place until NRC approval of the license amendment request to 
transition to 10 CFR 50.48(c). This discretion policy may be extended 
upon a request from the licensee with adequate justification.
    If, after submitting the letter of intent to comply with 10 CFR 
50.48(c) and before submitting the license amendment request, the 
licensee determines not to complete the transition to 10 CFR 50.48(c), 
the licensee must submit a letter stating their intent to retain their 
existing license basis and withdrawing their letter of intent to comply 
with 10 CFR 50.48(c). Any violations identified prior to the date of 
the above withdrawal letter will be eligible for discretion, provided 
they are resolved under the existing licensing basis and meet the 
criteria included in this policy for these violations. Violations 
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 reasonably provides for 
completion of the transition within two years of the date of the 
licensee's 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, 
and
    (3) The licensee submits a letter of intent within 6 months of the 
effective date of the final rule stating their intent to transition to 
10 CFR 50.48(c).
    After the 6 month period described in (3) 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.
* * * * *

    Dated at Rockville, Maryland, this 8th day of June, 2004.

    For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 04-13523 Filed 6-15-04; 8:45 am]
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