Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Notices 52705 

on http://www.regulations.gov under 

docket number OSHA 2008–0018. 

Darrin A. King, 

Departmental Clearance Officer. 

[FR Doc. E8–20983 Filed 9–9–08; 8:45 am] 

BILLING CODE 4510–26–P 

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. 

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 

Carol.Gallagher@nrc.gov. 

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 

pdr.resource@nrc.gov. 

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 

Cynthia.Carpenter@nrc.gov. 

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 


pwalker on PROD1PC71 with NOTICES
52706 Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Notices 

1The 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. 

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-bycase 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. 

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, nonpower 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 protectionrelated 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: 

Æ Classical fire protection transition 

(in accordance with NFPA 805 Chapter 

3). 

Æ Nuclear Safety Performance 

Criteria transition (in accordance with 

NFPA 805 chapters 1, 2 and 4). 

Æ Nonpower operational transitions. 

Æ 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-bycase 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 


pwalker on PROD1PC71 with NOTICES
Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Notices 52707 

1Applicants also request relief with respect to 

current or future series of the Companies and any 

other registered open-end management investment 

companies and their series that: (a) Are advised by 

the Advisor or any entity controlling, controlled by 

or under common control with the Advisor; (b) use 

the management structure described in the 

application; and (c) comply with the terms and 

conditions of the application (‘‘Future Funds,’’

included in the term ‘‘Funds’’). Any existing entity 

that currently intends to rely on the requested relief 

is named as an Applicant. If a Fund has the name 

of any Subadvisor (as defined below) in the Fund’s 

name, the Fund’s name will be preceded by the 

name of the Advisor (such as ‘‘Phoenix,’’ which is 

the present identifying name the Advisor uses in 

conducting its business) or the name of the entity 

controlling, controlled by, or under common 

control with the Advisor that serves as the primary 

adviser to the Fund. 

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] 

BILLING CODE 7590–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Investment Company Act Release No. 

28375; 812–13526] 

Phoenix Equity Trust, et al.; Notice of 

Application 

September 3, 2008. 

AGENCY: Securities and Exchange 

Commission (‘‘Commission’’). 

ACTION: Notice of an application under 

section 6(c) of the Investment Company 

Act of 1940 (the ‘‘Act’’) for an 

exemption from section 15(a) of the Act 

and rule 18f–2 under the Act. 

SUMMARY OF APPLICATION: The requested 

order would permit certain registered 

open-end management investment 

companies to enter into and materially 

amend subadvisory agreements without 

shareholder approval. 

APPLICANTS: Phoenix Equity Trust, 

Phoenix Insight Funds Trust, Phoenix 

Institutional Mutual Funds, Phoenix 

Opportunities Trust (the ‘‘Companies’’) 

and Phoenix Investment Counsel, Inc. 

(the ‘‘Advisor’’) (collectively, with the 

Companies, ‘‘Applicants’’). 

FILING DATES: The application was filed 

on April 23, 2008, and amended on 

September 2, 2008. 

HEARING OR NOTIFICATION OF HEARING: 

An order granting the application will 

be issued unless the Commission orders 

a hearing. Interested persons may 

request a hearing by writing to the 

Commission’s Secretary and serving 

applicants with a copy of the request, 

personally or by mail. Hearing requests 

should be received by the Commission 

by 5:30 p.m. on September 26, 2008 and 

should be accompanied by proof of 

service on applicants, in the form of an 

affidavit or, for lawyers, a certificate of 

service. Hearing requests should state 

the nature of the writer’s interest, the 

reasons for the request, and the issues 

contested. Persons who wish to be 

notified of a hearing may request 

notification by writing to the 

Commission’s Secretary. 

ADDRESSES: Secretary, Commission, 100 

F Street, NE., Washington, DC 20549–

1090. Applicants, One American Row, 

P.O. Box 5056, Hartford, CT 06102–

5056. 

FOR FURTHER INFORMATION CONTACT: 

Barbara T. Heussler, Senior Counsel at 

(202) 551–6990, or Mary Kay Frech, 

Branch Chief, at (202) 551–6821 

(Division of Investment Management, 

Office of Investment Company 

Regulation). 

SUPPLEMENTARY INFORMATION: The 

following is a summary of the 

application. The complete application 

may be obtained for a fee from the 

Commission’s Public Reference Room, 

100 F Street, NE., Washington, DC 

20549–1520 (telephone (202) 551–5850). 

Applicants’ Representations 

1. The Companies are open-end 

management investment companies 

registered under the Act. The 

Companies, except Phoenix Insight 

Funds Trust, are organized as statutory 

trusts under Delaware law. Phoenix 

Insight Funds Trust is organized as a 

Massachusetts business trust under 

Massachusetts law. The Companies 

presently are comprised of fifty-three 

separate series (each, a ‘‘Fund’’ and 

collectively, the ‘‘Funds’’) each of which 

has its own investment objectives, 

policies, and restrictions.1

2. The Advisor, a Massachusetts 

corporation, is registered under the 

Investment Advisers Act of 1940 

(‘‘Advisers Act’’) and serves as 

investment adviser to the Funds that use 


pwalker on PROD1PC71 with NOTICES