ML20126E542

Request for OMB Review & Supporting Statement Re 10CFR2, Rules of Practice for Domestic Licensing Proceedings. Estimated Burden of Respondent Is 1,440 H

ML20126E542
Person / Time
Issue date:	12/11/1992
From:	Cranford G NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM)
To:
References
OMB-3150-0136, OMB-3150-136, NUDOCS 9212290188
Download: ML20126E542 (22)

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• OM of Inf er-ation Uneer the racecr ~ n ~ w<< c .c' y.c. .,_ . m < < , : n. . " Nuclear Reactors, Energy Administrative Law" The amendment to 10 CFR 2, Appendix C, adds an additional enforcement discretion provision to NRC's enforcement policy relating to technical specifications and license conditions.

A licensee must submit a written application for enforcement discretion and document the safety basis for the request.

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l SUPPORTING STATEMENT FOR MODiflCATION TO NRC ENFORCEMENT l0llCY. 10 CFR PART 2.

RED I X C . V l l . Q) . EXERCISE OF D11CRET10N FOR AN OPERATl!iq_LABLHJ A

(3150-0136)

Dncription of the Information Collection, lhe Commission's modified Enforcement Policy more fully describes the circumstances in which the Commission may exercise enforcement discretion. On occasion, circumstances arise when a licensee's compliance with a Technical Specification L.imiting Condition for Operation or any other license condition would involve an unnecessary plant transient or performance of testing, inspection, or system realignment that is inappropriate with the specific plant conditions, or delays in plant startup without a corresponding health and safety benefit, in these circumstances, a licensee may request that the Commission exercise enforcement discretion, and the NRC ;taff may choose not to enforce the applicable technical specification or license condition.

A licensee requesting this exercise of discretion must document the safety basis for the request, including an evaluation of the safety significance and potential consequences of the proposed request, a description of proposed compensatory measures, a justification for the duration of the request, the basis for the licensee's conclusion that the request does not have a potential adverse impact on the public health and safety, and does not involve adverse consequences to the environment, and any other information the NRC staff deems necessary before making a decision to exercise discretion.

A. JUSTlflCATION

1. lleed for the Collection of Irformation The Commission believes that the NRC staff needs the authority to quickly exercise discretion in this area in order to avoid unnecessary plant transients, to minimize both operational and shutdown risk, and to avoid unnecessary delays in plant startup where the course of action involves minimal or no safety impact and the NRC staff is clearly satisfied that the exercise of discretion is consistent with the public health and safety-Exercise of enforcement discretion may be appropriate only where the exercise of discretion is temporary and nonrecurring. The NRC might exercise discretion where the expected noncompliance is of such short duration that a license amendment could not be issued before the need no longer exists, making it impractical to amend the license. It may also be appropriate to exercise discretion for the brief period of time it requires the NRC staff to process an emergency or exigent. Technical Specification amendment under the provisions of 10 CFR 50.91(a)(5) or (6).

Finally, the decision to exercise enforcement discretion is one that the NRC staff is under no obligation to make. 'Where it is exercised, it is to be exercised only if the staff is clearly satisfied that the action is consistent with protecting the public health and safety.

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2 The impact on each licensee of providing the NRC staff with the information the staff requires to determine if exercising enforcement discretion is in the best-interest of the aublic health and safety is inconsequential in comparison wit 1 the alternative: follow license conditions and either cease pcwer ,

operations and shut down the plant, or perform testing, inspection, or system realignment that is inappropriate for the specific plant conditions, or delay plant startup. Requesting that the NRC staff exercise enforcement discretion is strictly a voluntary option for all licensees.

2. Aaency Use of Information The agency will use this information to determine if the exercise of enforcement discretion is clearly consistent with protecting the public health and safety, and there is no potential for adverse consequences to the environment.

For an operating plant, 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 discrction is intended to minimize shutdown risk by again, avoiding .tsting, inspection or system realignment which is inappropriate fnr the particular plant conditions, in that, it does not provide a safety benefit. Exercising enforcement discretion for plants attempting to start up 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 license conditions: (1) the equipment or system does not perform a safety function in the mode in which operation is to occur; or (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 a plant ,

transient; or (3) the technical specification or 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.

3. Reduction of Burden Throuah Information Technoloav There is no legal obstacle to the use of information technology. ,

Hor -ar, the NRC encourages its use.

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4. Effort to Identifv Duplication'  ;

This information is only necessary when a licensee requests '

enforcement discretion be exercised by the agency. There is no other time the relevant information is required to be submitted.

5. Effort to Use Similar Information There is no source for the information other than licensees.

6. Effort to Reduce Small Business Burden This voluntary information collection is only applicable to

' licensees of nuclear plants and does not affect small businesses. ,

7. Conseauences of Less Freauent Collection This action is strictly voluntary and information is required only upon the licensee's request for enforcement discretion.-

8. Circumstances Which Justify Variation From OMB Guidelines This action does not vary from OMB guidelines.

9. Consultation Outside the NRC -

There have been no outside consultations.

10. Confidentiality of Information There is no pledge of confidentiality. -

11. Justification for Sensitive Ouestioni I

No sensitive information is requested.

12. Estimated Annual Burden to the Federal Government The estimated annual- burden to the' government for reviewing licensee requests for enforcement discretion is 20 hours2.314815e-4 days <br />0.00556 hours <br />3.306878e-5 weeks <br />7.61e-6 months <br /> per-request, including meetings and secretarial support.

- Approximately 36 licensees are expected to request one enforcement -

discretion each year. Therefore, the total burden is estimated at ,

720 hours0.00833 days <br />0.2 hours <br />0.00119 weeks <br />2.7396e-4 months <br /> (36 licensees x 20 hours2.314815e-4 days <br />0.00556 hours <br />3.306878e-5 weeks <br />7.61e-6 months <br />). The total cost at $123 an ,

hour;is-$88,560. ,

i l 13. Estimate of Industry Burden l Since this policy statement is voluntary, only an estimate can be made of the number of licensees choosing to implement its requirements. Staff estimates 36 licensees will request one L

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4 enforcement discretion each year. The burden per request is 40-hours; the total annual burden is 1,440 hours0.00509 days <br />0.122 hours <br />7.275132e-4 weeks <br />1.6742e-4 months <br /> (36 licensees x 40 hours4.62963e-4 days <br />0.0111 hours <br />6.613757e-5 weeks <br />1.522e-5 months <br />). The total cost at $123 an hour is $177,120.

14. Reasons for Chanae in Burden Not applicable - new information collection.

15. Eublication for Statistical Use

-The information will not be published for statistical use.

B. COLLECTIONS OF INFORMATION EMPLOYING STATISTICAL METHODS _

Statistical methods are not used in this information collection.

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NUCLEAR REGULATORY COMMISSION ,

10 CFR Part 2 RIN 3150-AE36 Policy and Procedure for NRC Enforcement Actions; Policy Statement

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AGENCY: Nuclear Regulatory Commission.

ACTION: Policy Statement: Modification.

SUMMARY

The NRC is modifying its Enforcement Policy to describe more fully the circumstances in which it may exerciso enforcement discretion. This policy is codified at Appendix C to 10 CFR Part 2 (57 FR 5791; February 18, 1992).

DATES: This modification is effective on (Insert date of Publication in the Federal Register).- Comments received by (30 days of the date of. publication) will be considered.

Comments received after-this date will be considered if it is practical to do so, but the Commission is able to assure  ;

consideration only for comments received during the 30-day period following issuance.

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ADDRESSES: Send comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20 55, IdFrN: Docketing and Service Branch. f Deliver comments tot 11555 Rockville Pike, Rockville, Maryland 20852, between 7:45 a.m. and 4:15 p.m. Federal workdays.

Copies of comments received may be examined att the NRC Public Document Room, 2120 L Street, NW. (Lower Level),

Washington, DC.

FOR FURTHER INFORMATION CONTACT: James Lieberman, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 504-2741.

SUPPLEMENTARY INFORMATION:

Background

In July 1985, the NRC staff issued internal' guidance to addrers situations where-a reactor licensee's compliance with a Technical Specification (TS) or other license condition may cause an-unnecessary plant transient or unnecessarily prevent plant startup and where, in such instances, the temporary exercise"of discretion by the NRC not to enforce compliance may be appropriate. That guidance has been revised periodically with the latest revision having been made in February 1990.

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6 The circumstances in which the NRC staff may exerciso enforcement discretion have been generally described in Section  !

VII of the Enforcement Policy (10 CFR Part 2, Appendix C). In f

order to consolidate the description of all circumstances where -,

enforcement discretion may be exercised into one locatio' the Commission has determined that a discussion of the possib.11ty of enforcement discretion for TS or other license condition compliance should also be placed in Section VII of the Enforcement Policy. In addition,Section VIII of the Enforcement Policy is being modified to make it clear that actions taken by licensco employees pursuant to such an exerciso of discretion will not result in enforcement action against the individuals involved. Finally, to reflect tho information collection requirements of this change, 10 CFR 2.8 is being amended to r

reference that fact.

The Commission believes that the exercise of enforcement discretion in this area is warranted to avoid unnecessary plant transients, to reduce both operational and shutdown risk, and to avoid unnecessary delays in plant startup where the course of action involves minimal or no safety impact and the NRC staff is clearly satisfied that the exercise of discretion is consistent with the public health and safety.

Exorcise of enforcement discretion is appropriats only.where the exercise of discretion is temporary and nonrecurring. The 3

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I appropriate Regional Administrator or his designee might exercise j discretion where the expected noncompliance is of such short duration that a license amendment could not be issued before the - ,

nood no longer exists, making it impractical to amend the i license. It may also be appropriate to exercise discretion for '

the brief period of time it requires the NRC staff to process an ,

emergency or exigent TS amendment under the provisions of 10 CFR.

50. 91 (a) ( 5) or (6). Enforcement discretion in these cases would be exercised by the Director, Office of Nuclear Reactor Regulation,-or his designee.

A licensee who requests the NRC to forego enforcement of a TS or other license conditon must document the safety basis for the request, including an evaluation of the safety significance and potential consequences of the proposed course of action, a description of compensatory measures, a justification for the duration of the request, the basis for the licensee's conclusion that the request does not have a potential adverse impact on the public health and safety, and does not involve adverse consequences to the environment, and any other information the NRC staff deems necessary before ma, king a decision to exercise discretion.

In each case where the NRC staff has-decided to exercise its-enforcement discretion, enforcement action will normally be-taken for the root causes, to the extent violations were involved, that-4

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led to the noncompliance at issue. Such enforcement action is intended to emphasize that licensees should not rely on the NRC's l authority to exercise enforcement discretion as a routine substitute for compliance or for requesting a license amendment.

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Since this action concerns a general statement of policy, no ,

prior notice is required and, therefore, this modification to the Enforcement Policy is effective [Date of publication in the Federal Register).

Paperwork Reduction Act Statement 1

This Policy Statement contains information collection requirements that are subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq). These requirements were approved by the Office of Management and Budget under control number 3150-0136. .

P The public reporting burden for this c011ection of information is estimated to average 40 hours4.62963e-4 days <br />0.0111 hours <br />6.613757e-5 weeks <br />1.522e-5 months <br /> per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the colleccion of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for 5 ,

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reducing this burden, to the Information and Records Management l Branch (MNBB-7714), U.S. Nuclear Regulatory Commission, Washington, DC 20555, and to the Desk Officer, Office of Information and Regulatory Affairs, NEOB-3019, (3150-0136) Office j of Management and Budget, Washington, DC 20503.

List of Subjects in 10 CFR Part 2 Administrative practice and procedure, Antitrust, Byproduct material, Classificd information, Environmental _ protection, Nuclear materials,-Nuclear power plants and reactors, Penalty, Sex discrimination, source material, Special nuclear material, Waste treatment and disposal.

PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS

1. The authority citation for Part 2 continues to read in part as follows:

AUTHORITY: Sec. 161, 68 Stat. 948, as amended (42 U.S.C.

2201) ; sec 201, 88 Stat 1242, as amended (42 U.S.C. 5481) * *

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2. In $2.8, paragraph (b) is revised to read as follows:

$2.8 Information collection requirements: OMB approval.

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(b) The-approved information collection requirements contained in this part appear in Appendix C.

3. In Appendix C, a heading reading " Table of Contents" is added directly before the table of contents and a new heading for Section VII.C is added to reads Appendix C -

General Statement of Policy and Procedure for-liRC Enforcement Actions Table of Contents -

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r C. Exercise of Discretion for an Operating Facility

4. In Appendix C,Section VII, paragraph.(c) is added to read as follows:

VII Exercise of Discretion

• * * *

• l C. Exercise of Discretion for an Operating Facility 7

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-on occasion, circumstancos may arise where a-licensee's complianco with a Technical Specification -!

(TS) Limiting-Condition for operation or'with other I licenso 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. In those circumstances, the NRC staff may choose not b^ enforce the applicable TS or other licenso condition. This enforcement discretion will only be exercised if the NRC-staff is clearly satisfied that the action is consistent with protecting the public health and safety. A licensoo seeking the i exercise of enforcement discretion must provido a 1

written justification, or in circumstances whero good cause is shown, oral justification followed as soon as possible by written justification, which documents the safety basis for the request and provides-whatever other information the NRC staff deems necessary in ,

making a decision on whether or not to-exercise enforcement discretion.

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The approprlate Regional Administrator, or his. -

designoo, may exerciso discretion where the noncompliance is temporary and nonrocurring when an 8

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amendment is not practical. The Director, office of Nuclear Reactor Regulation, or his designeo, may exercise discretion 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). The person exercising enforcement discretion will document the decision.

For an operating plant, this exercise of enforcement discretion is intended to minimize the potential safety consequences of innnecessary 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 9

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condition in which it could experience undesirable transinnts. 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 modo 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, e

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.

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 exercise enforcement discretion, enforcement action will normally be taken for the root causes, to the extent violations-were involved, that 10 r

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led to the noncompliance for which onforcement discretion was used. The enforcement action is intended to emphasize that licenseos should not rely on the NRC's authority to exercise enforcement discretion as a routino substitute for compliance or for requesting a licenso amendment.

Finally, it is expected that the NRC staff will exerciso enforcement discretAon in this area infrequently. Although a plant must shut down, refueling activities may be suspended, or plant startup may be delayed, absent the exorcise of onforcement discretion, the NRC staff is under no obligation to take such a step merely because it-has been roquested.

The decision to forego enforcement is discretionary.

Where enforcement discretion is to be exercised, it is to be exercised only if-the NRC staff is clearly satisfied that such action is warranted from a health and safety perspectivo.

5. Appendix C,Section VIII is.amonded by revising the last example under the paragraph involving individual enforcement actions. for the convenience of the user, the-introductory.

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i paragraph concerning individual onforcement actions is reprinted without change. ,

VIII. Enforcement Actions Involving Individuals Listed below are examples which could result in enforcement actions involving individuals, licensed or unlicensed. If the actions described in these examples are taken by a licensed operator or taken deliberately by an unlicensed individual, enforcement action may be taken directly against the individual.

However, violations involving willful conduct not amounting to-deliberate action by an unlicensed individual in these situations-may result in enforcement action against the licensee that may.

impact the individual. The situations include, but are not limited to, violations that involve Willfully taking actions that ' violate Technical specification Limiting conditions for operation or other license conditions-(enforcement action for a willful violation will not be taken if that violation is the result of action taken following the NRC's decision to forego enforcement of the 12 s -*

Technical Specification or other licenso condition or if the operator meets the requirements of 10 CFR 50.54 (x), i.e., unless the operator acted unreasonably considering all the relevant circumstances surrounding the emergency.)

Dated at Rockville, Maryland, this day of 1992.

For The lluclear Regulatory Commission.

Samuel J. Chilk, Secretary of the Commission.

m 13

I (7590-01)

U. S. NUCLEAR REGULATORY C0HMISSION Documents Containing Reporting or Recordkeeping Requirements: '

Office of Management and Budget (OMB) Review  :

AGENCY: U. S. Nuclear Regulatory Commission (NRC)

ACTION: Notice of OMB review of information collection.

SUMMARY

The NRC has recently submitted to OMB for review the following proposal for the collection of information under the provisions of the Paperwork Reduction Act-(44 U.S.C. Chapter 35).

1. Type of submission, new, revision, or extension: Revision

2. The title of the information collection: Modification to NRC Enforcement Policy, 10 CFR Part 2, Appendix C, Exercise '

of Discretion _for an Operating Facility.-

3. The form number if applicable: Not applicable

4. How often the collection is required: On occasion ,

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5. - Who'will be' required or asked to r; port: Nuclear Reactor Licensees P-f i

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6. An estimate of the number of responses: 36 annually

7. An estimate of the total number of hours required annually to complete the requirement or request: 1,440 hours0.00509 days <br />0.122 hours <br />7.275132e-4 weeks <br />1.6742e-4 months <br /> (40 ,

hours per request)

8. An indication of whether Section 3504(h), P.L.96-511 .

applies: Applicable ,

9. Abstract: The proposed change to Appendix C, 10 CFR 2 modifies NRC's Enforcement Policy to more fully describe the ci .tances in which the NRC may exercise enforcement di. .stion. This provision relates tu circumstances which may arise where a. licensee's compliance with.a Technical ,

Specification 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. A licensee seeking the exercise of enforcement discretion must provide a written justification, which-documents the safety basis for-

--the request and provides--whatever other information the NRC staff deems necessary-to decide whether or not to_ exercise discretion.

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I Copies of the submittals may be inspected or obtained for a fee from the NRC .

Public Document Room, 2120 L Street, NW. (Lower Level), Washington, D.C.

20555.

Comments and questions should be directed to the OMB reviewer:

Ronald Hinsk Office of Information and Regulatory Affairs (3150-0136)

NE08-3019 Office _of Management and 8tdget ,

Washington, D.C. 20503 Comments can also be submitted by telephone at (202) 395-3084. The NRC I Clearance Officer is Brenda Jo. Shelton, (301) 492-8132.

Dated at Bethesda, Maryland, this// day of December 1992.

t For the Nuclear Regulatory Commission b

~h k $y%w Gerald F. Cranford, Designa ed Senior Official for Information Resources Management h

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