[Federal Register Volume 69, Number 219 (Monday, November 15, 2004)]
[Notices]
[Pages 65657-65659]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25260]


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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 
administrative change that provides that the appropriate Regional 
Administrator will issue all Notices of Enforcement Discretion (NOEDs) 
for power reactors.

DATES: This revision is effective November 15, 2004. Comments on this 
revision to the Enforcement Policy may be submitted on or before 
December 15, 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 <a href="/cdn-cgi/l/email-protection#bfd1cddccddacfffd1cddc91d8d0c9"><span class="__cf_email__" data-cfemail="abc5d9c8d9cedbebc5d9c885ccc4dd">[email protected]</span></a>.
    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: Herbert N. Berkow, Office of Nuclear 
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, (301) 415-1395, e-mail (<a href="/cdn-cgi/l/email-protection#31797f73715f43521f565e47"><span class="__cf_email__" data-cfemail="f3bbbdb1b39d8190dd949c85">[email protected]</span></a>) or Ren[eacute]e 
Pedersen, Office of Enforcement, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, (301) 415-2742, e-mail (<a href="/cdn-cgi/l/email-protection#1d4f504d5d736f7e337a726b"><span class="__cf_email__" data-cfemail="d6849b8696b8a4b5f8b1b9a0">[email protected]</span></a>).

SUPPLEMENTARY INFORMATION: Section VII.C of the Enforcement Policy 
describes the circumstances when the staff may exercise enforcement 
discretion in the form of a NOED for power reactors.
    On occasion, circumstances may arise where a licensee's compliance 
with a Technical Specification (TS) Limiting Condition for Operation 
(LCO) or other license condition would involve: (1) An unnecessary 
plant transient; (2) performance of testing, inspection, or system 
realignment that is inappropriate with the specific plant conditions; 
or, (3) unnecessary delays in plant startup without a corresponding 
health and safety benefit. The staff may also grant enforcement 
discretion in cases involving severe weather or other natural 
phenomena. This decision is based upon balancing the public health and 
safety or common defense and security of not operating against the 
potential radiological or other hazards associated with continued 
operation, resulting in a determination that safety will not be 
impacted unacceptably by exercising this discretion. The Commission is 
to be informed expeditiously following the granting of a NOED in such 
situations.
    In these circumstances, the NRC staff may choose to not enforce the 
applicable TS or other license condition. This enforcement discretion, 
designated as a NOED, is only exercised if the NRC staff is clearly 
satisfied that the action is consistent with protecting the public 
health and safety. NRC guidance for implementing the NOED policy for 
power reactors is provided in the NRC Inspection Manual Part 9900 
guidance.
    The Enforcement Policy and implementing guidance have historically 
recognized the distinction between: (1) Those instances where a 
noncompliance is temporary and nonrecurring when an amendment is not 
practical, and (2) those instances where a noncompliance will occur 
during the brief period of time required for the NRC staff to process 
an emergency or exigent license amendment under the provisions of 10 
CFR 50.91(a)(5) or (6). In the first situation, the Regional 
Administrator has issued the NOED and subsequently documented the 
decision for granting the NOED. In the second situation, the Director, 
Office of Nuclear Reactor Regulation (NRR) has issued the NOED and 
subsequently documented the decision for granting the NOED. In other 
words, the current distinction between region-issued and NRR-issued 
NOEDs for power reactors is based on the duration of the NOED and 
whether or not a follow-up license amendment is appropriate.
    This revision of the Enforcement Policy eliminates the distinction 
between region-issued and NRR-issued NOEDs for power reactors. Although 
historically most NOEDs have been issued and documented by the 
cognizant regions without follow-up license amendments, all NOED 
requests have been evaluated and decisions made jointly by the regional 
and NRR staffs. Thus, the distinction is unnecessary.
    The Enforcement Policy revision specifies that the associated 
regional and headquarters staff will together determine the 
appropriateness of granting a requested NOED. If the NOED is determined 
to be appropriate, regional staff will complete the documentation 
process associated with granting the NOED.
    The revision provides that, for all power reactor NOED 
determinations, the Regional Administrator, or his or her designee, may 
issue a NOED after consultation with headquarters and therefore 
eliminates the need to categorize NOEDs as regional- or headquarters-
lead. This clarification will provide a more predictable, clear, and 
consistent process for licensees when requesting NRC to consider 
granting a NOED.
    This policy revision, as well as other NOED process improvements, 
was discussed with representatives of the Nuclear Energy Institute 
(NEI) and other stakeholders at a public meeting with the NRC staff on 
July 14, 2004. The NRC plans on completely revising and reissuing its 
Part 9900 guidance later in the year. In addition to the Enforcement 
Policy revision, other process improvements include emphasizing that 
the license amendment process should be used in preference to NOEDs 
whenever possible and developing improved guidance to address the NOED 
request requirement to demonstrate no net increase in radiological 
risk. In addition, other concurrent improvements to the NOED process 
will result in most NOEDs having follow-up license amendments 
regardless of the NOED duration.
    The revision to the Enforcement Policy is strictly administrative 
in nature and will support simplification of the NOED process by 
providing a clear understanding of the roles and responsibilities of 
NRC regional and headquarters staff associated with issuance of NOEDs.

[[Page 65658]]

    It is anticipated that the Enforcement Policy revision will have 
minimal, if any, impact on external stakeholders.

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 in not required to 
respond to, collection of information unless it displays a currently 
valid OMB control number.

Small Business Regulatory Enforcement Fairness Act

    In accordance with the Small Business Regulatory Enforcement 
Fairness Act of 1996, the NRC had 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 proposed revision to the NRC Enforcement Policy 
reads as follows:

General Statement of Policy and Procedure for NRC Enforcement Actions

* * * * *

VII. Exercise of Discretion

* * * * *

C. Notice of Enforcement Discretion for Power Reactors and Gaseous 
Diffusion Plants

    On occasion, circumstances may arise where a power reactor's 
compliance with a Technical Specification (TS) Limiting Condition for 
Operation or with other license conditions would involve an unnecessary 
plant transient or performance of testing, inspection, or system 
realignment that is inappropriate with the specific plant conditions, 
or unnecessary delays in plant startup without a corresponding health 
and safety benefit. Similarly, for a gaseous diffusion plant (GDP), 
circumstances may arise where compliance with a Technical Safety 
Requirement (TSR) or technical specification or other certificate 
condition would unnecessarily call for a total plant shutdown or, 
notwithstanding that a safety, safeguards, or security feature was 
degraded or inoperable, compliance would unnecessarily place the plant 
in a transient or condition where those features could be required.
    In these circumstances, the NRC staff may choose not to enforce the 
applicable TS, TSR, or other license or certificate condition. This 
enforcement discretion, designated as a Notice of Enforcement 
Discretion (NOED), will only be exercised if the NRC staff is clearly 
satisfied that the action is consistent with protecting the public 
health and safety. The NRC staff may also grant enforcement discretion 
in cases involving severe weather or other natural phenomena, based 
upon balancing the public health and safety or common defense and 
security of not operating against the potential radiological or other 
hazards associated with continued operation, and a determination that 
safety will not be impacted unacceptably by exercising this discretion. 
The Commission is to be informed expeditiously following the granting 
of a NOED in these situations. A licensee or certificate holder seeking 
the issuance of a NOED must provide a written justification, or in 
circumstances where good cause is shown, oral justification followed as 
soon as possible by written justification, that documents the safety 
basis for the request and provides whatever other information necessary 
for the NRC staff to make a decision on whether to issue a NOED.
    For power reactors, the appropriate Regional Administrator, or his 
or her designee, may issue a NOED after consultation with the Director, 
Office of Nuclear Reactor Regulation, or his or her designee, to 
determine the appropriateness of granting a NOED where (1) the 
noncompliance is temporary and nonrecurring when an amendment is not 
practical or (2) if the expected noncompliance will occur during the 
brief period of time it requires the NRC staff to process an emergency 
or exigent license amendment under the provisions of 10 CFR 50.91 
(a)(5() or (6). For gaseous diffusion plants, the appropriate Regional 
Administrator, or his or her designee, may issue and document a NOED 
where the noncompliance is temporary and nonrecurring and when an 
amendment is not practical. The Director, Office of Nuclear Materials 
Safety and Safeguards, or his or her designee, may issue a NOED if the 
expected noncompliance will occur during the brief period of time it 
requires the NRC staff to process a certificate amendment under 10 CFR 
76.45. The person exercising enforcement discretion will document the 
decision.
    For an operating reactor, this exercise of enforcement discretion 
is intended to minimize the potential safety consequences of 
unnecessary plant transients with the accompanying operational risks 
and impacts or to eliminate testing, inspection, or system realignment 
which is inappropriate for the particular plant conditions. For plants 
in a shutdown condition, exercising enforcement discretion is intended 
to reduce shutdown risk by, again, avoiding testing, inspection or 
system realignment which is inappropriate for the particular plant 
conditions, in that, it does not provide a safety benefit or may, in 
fact, be detrimental to safety in the particular plant condition. 
Exercising enforcement discretion for plants attempting to startup is 
less likely than exercising it for an operating plant, as simply 
delaying startup does not usually leave the plant in a condition in 
which it could experience undesirable transients. In such cases, the 
Commission would expect that discretion would be exercised with respect 
to equipment or systems only when it has at least concluded that, 
notwithstanding the conditions of the license: (1) The equipment or 
system does not perform a safety function in the mode in which 
operation is to occur; (2) the safety function performed by the 
equipment or system is of only marginal safety benefit, provided 
remaining in the current mode increases the likelihood of an 
unnecessary plant transient; or (3) the TS or other license condition 
requires a test, inspection, or system realignment that is 
inappropriate for the particular plant conditions, in that it does not 
provide a safety benefit, or may, in fact, be detrimental to safety in 
the particular plant condition.
    For GDPs, the exercise of enforcement discretion would be used 
where compliance with a certificate condition would involve an 
unnecessary plant shutdown or, notwithstanding that a safety, 
safeguards, or security feature was degraded or inoperable, compliance 
would unnecessarily place the plant in a transient or condition where 
those features could be required. Such regulatory flexibility is needed 
because a total plant shutdown is not necessarily the best response to 
a plant condition. GDPs are designed to operate continuously and have 
never been shut down. Although portions can be shut down for 
maintenance, the NRC staff has been informed by the certificate holder 
that restart from a total plant shutdown may not be practical and the 
staff agrees that the design of a GDP

[[Page 65659]]

does not make restart practical. Hence, the decision to place either 
GDP in plant-wide shutdown condition would be made only after 
determining that there is inadequate safety, safeguards, or security 
and considering the total impact of the shutdown on safety, the 
environment, safeguards, and security. A NOED would not be used for 
noncompliances with other than certificate requirements, or for 
situations where the certificate holder cannot demonstrate adequate 
safety, safeguards, or security.
    The decision to exercise enforcement discretion does not change the 
fact that a violation will occur nor does it imply that enforcement 
discretion is being exercised for any violation that may have led to 
the violation at issue. In each case where the NRC staff has chosen to 
issue a NOED, enforcement action will normally be taken for the root 
causes, to the extent violations were involved, that led to the 
noncompliance for which enforcement discretion was used. The 
enforcement action is intended to emphasize that licensees and 
certificate holders should not rely on the NRC's authority to exercise 
enforcement discretion as a routine substitute for compliance or for 
requesting a license or certificate amendment.
    Finally, it is expected that the NRC staff will exercise 
enforcement discretion in this area infrequently. Although a plant must 
shut down, refueling activities may be suspended, or plant startup may 
be delayed, absent the exercise of enforcement discretion, the NRC 
staff is under no obligation to take such a step merely because it has 
been requested. The decision to forego enforcement is discretionary. 
When enforcement discretion is to be exercised, it is to be exercised 
only if the NRC staff is clearly satisfied that the action is warranted 
from a health and safety perspective.
* * * * *

    Dated at Rockville, MD, this 8th day of November, 2004.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 04-25260 Filed 11-12-04; 8:45 am]
BILLING CODE 7590-01-P


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