[Federal Register Volume 77, Number 110 (Thursday, June 7, 2012)]
[Notices]
[Pages 33786-33788]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-13808]


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NUCLEAR REGULATORY COMMISSION

[NRC-2011-0176]


NRC Enforcement Policy Revision

AGENCY: Nuclear Regulatory Commission.

ACTION: Policy revision; issuance.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or Commission) is 
publishing revisions to its Enforcement Policy (Enforcement Policy or 
Policy) to address construction-related topics, including enforcement 
discretion.

DATES: This revision of the NRC Enforcement Policy is effective on June 
7, 2012.

ADDRESSES: Please refer to Docket ID NRC-2011-0176 when contacting the 
NRC about the availability of information regarding this document. You 
may access information related to this document, which the NRC 
possesses and are publicly available, using any of the following 
methods:
     Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2011-0176. Address 
questions about NRC dockets to Carol Gallagher; telephone: 301-492-
3668; email: Carol.Gallagher@nrc.gov.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may access publicly available documents online in the NRC 
Library at http://www.nrc.gov/reading-rm/adams.html. To begin the 
search, select ``ADAMS Public Documents'' and then select ``Begin Web-
based ADAMS Search.'' For problems with ADAMS, please contact the NRC's 
Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-
4737, or by email to pdr.resource@nrc.gov. The ADAMS accession number 
for each document referenced in this notice (if that document is 
available in ADAMS) is provided the first time that a document is 
referenced.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: Carolyn Far[iacute]a, Office of 
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001; telephone: 301-415-4050, email: Carolyn.Faria-Ocasio@nrc.gov.

SUPPLEMENTARY INFORMATION:

Background

    In a Staff Requirements Memorandum, SECY-09-0190, ``Staff 
Requirements--SECY-09-0190--Major Revision to NRC Enforcement Policy,'' 
dated August 27, 2010 (ADAMS Accession No. ML102390327), the Commission 
approved a revision to its Enforcement Policy. The NRC published a 
notice in the Federal Register on September 30, 2010 (75 FR 60485), 
announcing a revision to the Policy. The Commission also directed the 
NRC staff to reevaluate the portions of the Policy associated with 
construction activities (e.g., reactor or uranium enrichment plants), 
including under what conditions enforcement discretion could be applied 
to cases involving the holder of a limited work authorization (LWA) or 
combined license (COL). In a Federal Register notice (FRN) published on 
August 9, 2011 (76 FR 48919), the NRC solicited written comments from 
interested parties, including public interest groups, States, members 
of the public, and the regulated industry (i.e., reactor and materials 
licensees, vendors, and contractors) on construction-related topics 
that the NRC staff was evaluating for discussion in a Commission paper 
that would include recommended revisions to the NRC Enforcement Policy. 
On August 30, 2011, the NRC conducted a public meeting to discuss the 
proposed changes to the Policy. The meeting consisted of a detailed 
presentation of the changes as published in the FRN, and members of the 
public who attended the meeting received the opportunity to have an 
open discussion with the NRC staff.
    In response to the FRN dated August 9, 2011 (76 FR 48919), and the 
public meeting on August 30, 2011, the staff received written comments 
on the proposed Policy revisions. Several stakeholders offered changes 
to the language in the Enforcement Policy to assist the NRC staff in 
clarifying the intent of the proposed revisions. The NRC also received 
comments from regulated industry stakeholders about the agency's policy 
on the use of enforcement discretion during construction. Based in part 
on the comments received from external stakeholders, the NRC staff has 
made changes to the Policy language where it deemed it appropriate to 
do so. A summary of the public comments on the proposed Policy and the 
NRC staff's responses to those comments is available in ADAMS under 
Accession No. ML11286A123.

Summary of Revisions to the Enforcement Policy

    The following sections describe the changes to the Enforcement 
Policy. These sections also provide background information on those 
topics evaluated by the NRC staff.

1. Revision to Section 1.0, ``Introduction''

    The phrase ``construct and'' was added to Item b to recognize that 
the NRC's regulatory authority includes applications for, and the 
actual construction of, facilities that will eventually operate under 
NRC regulations.

2. Revision to Section 1.2, ``Applicability''

    The following two paragraphs were added to clarify that the 
Enforcement Policy applies to license holders, applicants, holders of 
construction authorizations, and certificate holders:

    It is NRC policy to hold licensees, certificate holders, and 
applicants responsible for the acts of their employees, contractors, 
or vendors and their employees, and the NRC may cite the licensee, 
certificate holder, or applicant for violations committed by its 
employees, contractors, or vendors and their employees.
    The NRC may use the term ``licensee'' in this Policy to 
generally refer not only to licensees, but also to certificate 
holders and applicants.

3. Revision to Section 2.2.1.a, ``Factors Affecting Assessment of 
Violations''

    The phrase ``onsite or offsite chemical hazard exposures resulting 
from licensed or certified activities'' was added as the third 
criterion when evaluating actual consequences for uniformity. The 
inclusion of ``onsite and offsite chemical hazard exposures'' is 
consistent with the current Policy, including the examples provided in 
Section 6.2, ``Fuel Cycle Operations.'' The first example in Section 
6.2 involves a high-consequence event, as defined in Title 10 of the 
Code of Federal Regulations (10 CFR) Part 70, ``Domestic Licensing of 
Special Nuclear Material.'' In particular, 10 CFR 70.61, ``Performance 
Requirements,'' defines ``high consequence'' to include, among other 
things, acute chemical exposure.

4. New Section 2.2.6, ``Construction''

    New Section 2.2.6 was added as follows:

Section 2.2.6 Construction

    In accordance with 10 CFR 50.10, no person may begin the 
construction of a production or utilization facility on a site on 
which the facility is to be operated until that person has been 
issued either a construction

[[Page 33787]]

permit under 10 CFR Part 50, a combined license under 10 CFR Part 
52, an early site permit authorizing the activities under 10 CFR 
50.10(d), or a limited work authorization under 10 CFR 50.10(d). In 
an effort to preclude unnecessary regulatory burden, while 
maintaining safety, the Changes during Construction (CdC) Process, 
as developed in Interim Staff Guidance (ISG)-025, permits the 
licensee to proceed with the installation and testing of structures, 
systems or components different from the current licensing basis 
while the license amendment request (LAR) is under NRC review. Any 
activities undertaken under the CdC process are at the risk of the 
licensee, and the licensee is obligated to return to the current 
licensing basis (CLB) if the related LAR is subsequently not 
approved by the NRC. Failure to timely restore the CLB may be 
subject to separate enforcement, such as an order, a civil penalty, 
or both.
    In accordance with 10 CFR 70.23(a)(7) and 10 CFR 40.32(e), 
commencement of construction before the NRC finishes its 
environmental review and issues a license for processing and fuel 
fabrication, conversion of uranium hexafluoride, or uranium 
enrichment facility construction and operation is grounds for denial 
to possess and use licensed material in the plant or facility. 
Additionally, in accordance with 10 CFR 70.23(b), failure to obtain 
Commission approval for the construction of the principal 
structures, systems, and components of a plutonium processing and 
fuel fabrication plant before the commencement of construction may 
also be grounds for denial of a license to possess and use special 
nuclear material.

    This language addresses when and how the assessment of violations 
during construction occurs; it parallels the information provided for 
the assessment of violations for operating reactors.

5. Revisions to Section 2.3.2, ``Noncited Violation''

    The words ``(for operating reactors)'' were added to the first 
sentence of the first paragraph to clarify the use of the Reactor 
Oversight Process. The last sentence of the first paragraph was 
modified to read: ``Typically, all of the criteria in either 2.3.2.a. 
or b. must be met for the disposition of a violation as an NCV.''
    The following new second paragraph was added to be consistent with 
Enforcement Guidance Memorandum (EGM)-11-002, ``Enforcement Discretion 
for Licensee-Identified Violations at Power Reactor Construction Sites 
Pursuant to Title 10 of the Code of Federal Regulations Part 52,'' 
dated June 3, 2011 (ADAMS Accession No. ML11152A065):

    For all SL IV violations identified by the NRC at fuel cycle 
facilities (under construction or in operation) in accordance with 
10 CFR Part 70 or 10 CFR Part 40 and reactors under construction in 
accordance with 10 CFR Part 50 or 10 CFR Part 52, before the NRC 
determines that an adequate corrective action program has been 
implemented, the NRC normally issues a Notice of Violation. Until 
the determination that an adequate corrective action program has 
been implemented, NCVs may be issued for SL IV violations if the NRC 
has determined that the applicable criteria in 2.3.2.b. below are 
met. For reactor licensees, after the NRC determines that an 
adequate corrective action program has been implemented, the NRC 
will normally issue an NCV in lieu of an SL IV violation, whether 
that violation is identified by the licensee or the NRC.

    The purpose of this EGM is to clarify the guidance for exercising 
enforcement discretion when the staff dispositions, as noncited 
violations (NCVs), Severity Level (SL) IV violations identified by 
licensees or applicants at power reactors that are under construction. 
The addition of this language also reflects current practices for 
dispositioning NCVs at fuel facilities (under construction or in 
operation).

6. Revisions to Section 2.3.2.a, ``Power Reactor Licensees''

    The phrase ``restore compliance and'' was added to criterion 1 to 
more accurately reflect the NRC's expectations.
    The current footnote, ``For reactor facilities under construction 
in accordance with 10 CFR Part 52, the corrective action program must 
have been demonstrated to be adequate,'' was deleted from criterion 1 
to reflect the NRC's goal of promoting early identification of 
deficient conditions by licensees, even at the early stage when the 
licensees' corrective action programs have not been demonstrated to be 
adequate.
    The phrase ``and violations associated with facility construction 
under 10 CFR Part 50, `Domestic Licensing of Production and Utilization 
Facilities,' and 10 CFR Part 52, `Licenses, Certifications, and 
Approvals for Nuclear Power Plants' '' was deleted from criterion 3 to 
reflect the NRC's expectation of crediting corrective action programs 
at power reactors to address both immediate corrective actions and any 
actions to preclude recurrence.

7. Revisions to Section 3.8, ``Notices of Enforcement Discretion for 
Operating Power Reactors and Gaseous Diffusion Plants''

    The following footnote was added to clarify that the notice of 
enforcement discretion (NOED) process is not applicable while reactor 
facilities are under construction:

    NOEDs will not be used at reactors during construction before 
the Commission's 10 CFR 52.103(g) or 10 CFR 50.57 finding, as 
applicable. However, the NRC may choose to exercise discretion and 
either escalate or mitigate enforcement sanctions or otherwise 
refrain from taking enforcement action within the Commission's 
statutory authority, as identified in Section 3.0 of this 
Enforcement Policy.

    The NRC has not identified any plausible scenarios where risk to 
public health and safety (or security) would be exacerbated by the 
failure of the NRC to grant such a licensee, or permit holder, an NOED.

8. New Section 3.9, ``Violations Involving Certain Construction 
Issues''

    A new section was added to incorporate new construction activities 
with traditional enforcement discretion. The new section also 
acknowledges that the NRC staff is developing a CdC process that will 
work in conjunction with the license amendment review process for COL 
holders only. The new process is intended to permit combined licensees 
(i.e. COL Holders) to proceed at risk with certain construction 
activities that differ from the licensing basis while the NRC is 
evaluating the related license amendment request.

3.9 Violations Involving Certain Construction Issues

a. Fuel Cycle Facilities

    The NRC may choose to exercise discretion for fuel cycle 
facilities under construction (construction is defined in 10 CFR 
40.4 for source material licensees and in 10 CFR 70.4 for special 
nuclear material licensees) based on the general enforcement 
discretion guidance contained in Section 3 of this Enforcement 
Policy.

b. Part 50 Construction Permit and LWA Holders

    The NRC may exercise discretion for Construction Permit and LWA 
holders during construction using the general enforcement discretion 
guidance in Section 3 of the Enforcement Policy.

c. COL Holders (Reactor Facilities)

    The NRC may exercise discretion for COL holders during 
construction using the general enforcement discretion guidance in 
Section 3 of the Enforcement Policy, as applicable. Additionally, 
the NRC may reduce or refrain from issuing an NOV/NCV for a 
violation associated with an unplanned change that deviates from the 
licensing basis that is implemented during construction and that 
would otherwise require prior NRC approval (in the form of a license 
amendment) when all of the following criteria are met:
     The licensee identifies the unplanned change 
implemented, which the staff would normally disposition as a 
Severity Level IV violation of NRC requirements.
     The licensee submits the necessary information without 
delay to the NRC so that

[[Page 33788]]

it can conduct a timely evaluation of the change as part of the 
license amendment review process, or submits information to the NRC 
stating that it will restore the current licensing basis (CLB).
     Either (1) the cause of the deviation was not within 
the licensee's control, such that the change was not avoidable by 
reasonable licensee quality assurance measures or management 
controls, or (2) the licensee placed the cause of the unplanned 
change in its corrective action program to ensure comprehensive 
corrective actions to address the cause of the change to preclude 
recurrence.
    For similar issues not identified by the licensee, the NRC may 
refrain from issuing an NOV/NCV on a case-by-case basis depending 
upon the circumstances of the issue, such as whether the 
requirements were clearly understood or should have been understood 
at the time, the cause of the issue, and why the licensee did not 
identify the issue.
    When the NRC determines that an unplanned change during 
construction associated with a violation of requirements meets the 
criteria outlined above and the licensee without delay submits the 
necessary information for NRC evaluation, the licensee's continued 
failure to meet the current licensing basis will not be treated as a 
willful or continuing violation only while the licensee prepares the 
license amendment request and the NRC reviews the submittal. (Note: 
If the NRC subsequently denies a requested license amendment change, 
or if the NRC requires additional measures to be taken for the 
change to be considered acceptable, then a separate NOV or order may 
be issued to ensure appropriate corrective actions are taken, 
including restoring the configuration to the CLB).

    The following two footnotes relating to the new Section 3.9 were 
added:

    The NRC may issue an enforcement action, including consideration 
of willfulness, for the cause of these unplanned changes, such as a 
failure to implement appropriate work controls or quality control 
measures, or a failure to adhere to procedures, processes, 
instructions, or standards that implement NRC requirements. This 
enforcement may be appropriate for the actions that led to the CdC 
issue.

and

    NRC-identified violations that result in a ``use as built'' 
determination or that result in an unplanned change (or both) will 
normally be dispositioned as a cited, noncited, or minor violation, 
whether or not the unplanned change issue is resolved by a 
subsequently approved license amendment.

9. Revisions to Section 6.0, ``Violation Examples''

    The following second paragraph was added to the introduction of the 
section:

    Many examples are written to reflect the risks associated with 
the use of nuclear materials. However, violations during 
construction generally occur before the nuclear material and its 
associated risk are present. Therefore, the NRC will consider the 
lower risk significance of violations that occur during construction 
in the areas of emergency preparedness, reactor operator licensing, 
and security and may reduce the severity level for those violations 
from that indicated by the examples in those areas. In order to 
maintain consistent application, the staff must coordinate with the 
Office of Enforcement before applying this lower risk significance 
concept for violations that occur during construction.

    The NRC staff recognizes that, although certain requirements (i.e., 
those for emergency preparedness, reactor operator licensing, and 
security) apply generally during construction activities, flexibility 
is needed to factor in the lower risk associated with certain 
violations that occur during construction.

10. Revisions to Section 7.0, ``Glossary''

    The glossary definition of ``licensee'' was revised to reflect the 
addition of language to Section 1.2, ``Applicability:''

    ``Licensee'' means a person or entity authorized to conduct 
activities under a license issued by the Commission. However, in 
most cases in the Policy, the term is applied broadly to refer to 
any or all of entities listed in Section 1.2, ``Applicability.''

Procedural Requirements

Paperwork Reduction Act Statement

    This policy statement contains and references new or amended 
information collection requirements that are subject to the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). These information 
collections 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 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 the Office of Information and Regulatory 
Affairs of OMB.

    Dated at Rockville, Maryland, this 1st day of June, 2012.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2012-13808 Filed 6-6-12; 8:45 am]
BILLING CODE 7590-01-P