[Federal Register Volume 79, Number 36 (Monday, February 24, 2014)]
[Rules and Regulations]
[Pages 9981-9984]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-03849]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 79, No. 36 / Monday, February 24, 2014 /
Rules and Regulations
[[Page 9981]]
NUCLEAR REGULATORY COMMISSION
2 CFR Chapter XX
5 CFR Chapter XLVIII
10 CFR Chapter I
[NRC-2011-0246]
Retrospective Analysis Under Executive Order 13579
AGENCY: Nuclear Regulatory Commission.
ACTION: Final plan for retrospective analysis of existing rules.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is making
available its final Plan for the retrospective analysis of its existing
rules. The final Plan describes the processes and activities that the
NRC uses to determine whether any of its regulations should be
modified, streamlined, expanded, or repealed. This action is part of
the NRC's voluntary implementation of Executive Order (E.O.) 13579,
``Regulation and Independent Regulatory Agencies,'' issued by the
President on July 11, 2011.
DATES: The final Plan is effective February 24, 2014.
ADDRESSES: Please refer to Docket ID NRC-2011-0246 when contacting the
NRC about the availability of information for this final Plan. You may
access publicly-available information and comment submittals related to
this final Plan by any of the following methods:
Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2011-0246. Address
questions about NRC dockets to Carol Gallagher; telephone: 301-492-
3668; email: [email protected]. For technical questions, contact
the individual listed in the FOR FURTHER INFORMATION CONTACT section of
this document.
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, at 301-
415-4737, or by email to [email protected]. The ADAMS accession
number for each document referenced in this document (if that document
is available in ADAMS) is provided the first time that a document is
referenced. The ADAMS Accession No for the ``Final Plan for
Retrospective Analysis of Existing Rules'' is ML14002A441.
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.
NRC's Open Government Web page: Go to http://www.nrc.gov/public-involve/open.html under the tabs entitled ``Selected NRC
Information Resources'' and ``Rulemaking.''
NRC's Plans, Budget, and Performance Web page: Go to
http://www.nrc.gov/about-nrc/plans-performance.html and select ``NRC's
Plan for Retrospective Analysis of Existing Rules.''
FOR FURTHER INFORMATION CONTACT: Cindy Bladey, Office of
Administration, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001; telephone: 301-492-3667 or email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Public Comments on the Draft Plan
III. Process Improvements
A. Regulatory Flexibility Act Compliance
B. Small Business Regulatory Enforcement Fairness Act Compliance
IV. Final Plan for Retrospective Analysis
I. Background
On January 18, 2011, President Obama issued E.O. 13563, ``Improving
Regulation and Regulatory Review.'' \1\ Executive Order 13563 directs
Federal agencies to develop and submit a preliminary plan ``under which
the agency will periodically review its existing significant
regulations to determine whether any such regulations should be
modified, streamlined, expanded, or repealed so as to make the agency's
regulatory program more effective or less burdensome in achieving the
regulatory objectives.'' Executive Order 13563 did not, however, apply
to independent regulatory agencies. Subsequently, on July 11, 2011, the
President issued E.O. 13579,\2\ which recommends that independent
regulatory agencies also develop retrospective plans similar to those
required of other agencies under E.O. 13563. In the spirit of
cooperation, on November 16, 2011 (76 FR 70913), in response to E.O.
13579, the NRC made available its initial Plan. A draft Plan was
published on November 23, 2012 (77 FR 70123), for a 60-day public
comment period that ended on February 6, 2013. After consideration of
its processes and the public comments received, the NRC is now
publishing its final Plan.
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\1\ See http://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
\2\ See http://www.gpo.gov/fdsys/pkg/FR-2011-07-14/pdf/2011-17953.pdf.
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II. Public Comments on the Draft Plan
The NRC received eight comment letters on the draft Plan. The
commenters included State organizations, licensees, industry
organizations, and individuals. The NRC staff determined that the
comment letters covered six issues. The following paragraphs include a
summary of the comments received under each issue and the NRC's
responses to the comments.
Issue 1: Final Plan Should Include a Section Requiring Review of
Existing Non-Power Reactor (NPR) Regulations
Comment: The University of Florida submitted a comment requesting
that the NRC include a section in the final Plan that would require the
review of existing requirements for NPRs. The University of Florida
stated that the NPR community is overburdened by regulations that are
marginal to safety and that the NPR community is ruled by NUREGs in a
manner that exceeds the statutory constraints of Section 104(c) of the
Atomic Energy Act of 1954, as amended (AEA).
Response: The NRC disagrees with the comment. While the NRC
understands
[[Page 9982]]
the NPR community's concern regarding compliance with Section 104(c) of
the AEA, the NRC believes that the same principles of good regulation
apply to NPR licensees and power reactor licensees alike. The NRC
conducts extensive public outreach and a thorough legal review in order
to ensure compliance with all sections of the AEA when issuing
regulations or other regulatory actions involving NPRs. The NRC's
regulations that apply to NPR licensees must first meet the standard of
providing reasonable assurance of protecting the public health and
safety. If that standard can be met with regulations that impose a
lesser burden on NPR licensees, stakeholders are encouraged to
communicate their ideas to the NRC. In addition, the NRC issues
guidance materials (Regulatory Guides, NUREGs, etc.) to communicate
potential means by which licensees may comply with the regulations.
Those guidance materials are not regulations, and licensees are
permitted to administer their programs as they see fit, provided
licensees can produce a sufficient basis illustrating how their program
administration follows the NRC's regulations. The final Plan was not
revised as a result of this comment.
Issue 2: Cumulative Effects of Regulation (CER)
Comment: The Nuclear Energy Institute (NEI) submitted a comment on
the draft Plan that suggested ``the intent of the retrospective
analysis could be met through addressing the cumulative effects of NRC
regulatory actions, rulemaking and other NRC regulatory processes
resulting in greater benefit in safety and resource management.'' The
NEI also asserted that broadening the scope of applicable processes
beyond rulemaking to other actions such as orders, generic guidance,
and information requests would result in more meaningful improvements.
Response: The NRC agrees that the effort to address CER does
contribute, in concert with the other NRC initiatives described in the
draft Plan, to the intent of the retrospective analysis. The NRC also
notes that SECY-12-0137, ``Implementation of the Cumulative Effects of
Regulation Process Changes,'' dated October 5, 2012 (ADAMS Accession
No. ML12223A162), provided the Commission with an update on the status
of implementing CER and feedback obtained during a May 2012 public
meeting. In response, the Commission issued the staff requirements
memorandum (SRM) to SECY-12-0137 (ADAMS Accession No. ML13071A635).
Among other items, the SRM directed:
Any expansion of the consideration of the CER should be considered
in the broader context of actions directed from COMGEA-12-0001/
COMWDM-12-0002, ``Proposed Initiative to Improve Nuclear Safety and
Regulatory Efficiency.''
The staff should continue to develop and implement outreach
tools that will allow the NRC to consider more completely the
overall impacts of multiple rules, orders, generic communications,
advisories, and other regulatory actions on licensees and their
ability to focus effectively on items of greatest safety import.
To inform its decision-making in addressing this directive, the NRC
staff will obtain public feedback through public meetings. The NRC
encourages continued public interaction on the subject of CER. The SRM
also directed:
The staff should engage industry to seek volunteer facilities to
perform ``case studies'' to review the accuracy of cost and schedule
estimates used in NRC's regulatory analysis (such as the 10 CFR
[Code of Federal Regulations] Part 73 security upgrades required
after the attacks of September 11, 2011 and 10 CFR 50.84c, NFPA 805
program).
The NRC will use the aforementioned public meetings as tools to
engage the industry on this initiative and believes that such case
studies will result in meaningful insights to inform decisions for
improving future regulatory analyses. The final Plan was not revised as
a result of this comment.
Issue 3: General Support for the Draft Plan
Three commenters provided general support for the draft Plan.
However, some commenters supported the draft Plan and offered comments
on areas that could be clarified or improved.
Comment 1: The NEI supported the draft Plan. The NEI stated that it
understood the NRC's apparent rationale behind committing limited
resources to this effort and agreed that there may not be benefit from
a wholesale retrospective analysis.
Comment 2: GE Hitachi Nuclear Energy supported ``the NRC approach
that provides ongoing assessments of regulatory burdens in various NRC
actions involving regulations. . .'' However, GE Hitachi Nuclear Energy
recommended that the NRC, when periodically revising the final Plan,
describe specific review actions and results that have occurred since
the last revision of the final Plan.
Response to Comments 1 and 2: The NRC appreciates the support for
the draft Plan. When the NRC periodically revises the final Plan, it
will consider including review actions and results that have occurred
since the last revision of the final Plan. The final Plan was not
revised as a result of Comments 1 and 2.
Issue 4: Openness and Transparency
Comment: The Citizens Oversight stated that while the draft Plan
included a section called ``Opportunities for Public Participation,''
the draft Plan did not propose any new opportunities for public
participation. The commenter complimented the NRC on its January 31,
2013, Commission public meeting on regulatory decision-making. However,
the commenter stated that the NRC limits oversight by the public by
adopting overly restrictive definitions of standing, providing overly
short periods for comments/petitions, making hearings the exception
rather than the rule, making the adjudicatory process too formal, and
conducting closed Commission meetings. Also, the commenter noted that
the NRC had not responded to public comments and questions submitted
after a public meeting in Dana Point, California.
Response: The Citizens Oversight comments are beyond the scope of
E.O.s 13579 and 13563, and the NRC's draft Plan. Specifically, the
Citizens Oversight comments on public participation relate to such
participation in NRC adjudicatory or licensee-specific licensing
actions (e.g., standing, petitions for invention, etc.) and not the
NRC's regulatory process for regulations. Executive Order 13579 is
directed towards the manner in which Independent Regulatory Agencies
issue or revise their regulations. To that end, E.O. 13579 recommends
that, to the extent permitted by law, Independent Regulatory Agencies
abide by a set of general requirements set forth in E.O. 13563,
including those associated with public participation. As the Citizens
Oversight notes in its comments, the principles of public participation
that E.O. 13563 endorses concerns the ability of the public to
participate in an agency's adoption of a regulation through the
regulatory process. Executive Order 13563 provides that each agency, to
the extent feasible and permitted by law, shall ``afford the public a
meaningful opportunity to comment through the Internet on any proposed
regulation, with a comment period that should generally be at least 60
days.'' Executive Order 13563 further provides that each agency, to the
extent feasible and permitted by law, shall also ``provide, for both
proposed and final rules, timely online access to the rulemaking docket
on regulations.gov. . .'' As stated in Section G of the NRC's final
Plan, the NRC already complies with these principles in its regulatory
process for
[[Page 9983]]
the development or modification of regulations.
If the Citizens Oversight seeks to modify the NRC's regulations
governing its adjudications, then it should avail itself of the
opportunities for public participation that the NRC identifies in its
final Plan, such as (1) participation in rulemaking activities related
to the NRC's adjudicatory procedures in 10 CFR Part 2; or (2) use of
the petition for rulemaking process in 10 CFR 2.802 to request specific
revision to those procedures. On May 3, 2013 (78 FR 25886), the NRC
published a proposed rule to streamline and clarify its process for
addressing petitions for rulemaking. Proposed changes to that process
aim to improve transparency and make the process more efficient and
effective. The final Plan was not revised as a result of this comment
from the Citizens Oversight; however, the NRC did update Section III of
the final Plan to include a description of the aforementioned proposed
rule.
Issue 5: Suggestions for Technical Improvements
Comment: The Citizens Oversight suggested several technical
improvements, including the following: (1) the NRC should provide
direct links to relevant documents, rather than just including an ADAMS
accession number; (2) the NRC should include Really Simple Syndication
(RSS) feeds on all of its Web pages; and (3) the NRC should remove
quotes in URLs. The commenter also noted that links within ADAMS
documents do not always work.
Response: The NRC considers this comment out-of-scope with regard
to the draft Plan. However, the Office of Information Services is
reviewing this comment and may contact the commenter regarding these
issues. The NRC would note that the recently developed Documents for
Comment page (http://www.nrc.gov/public-involve/doc-comment.html)
provides links to dockets on www.regulations.gov containing documents
with an open comment period. Individuals can subscribe to page updates
through GovDelivery \3\ in order to keep informed of NRC documents that
have been published in the Federal Register for comment. The final Plan
was not revised as a result of this comment.
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\3\ The Federal rulemaking Web site allows you to receive alerts
when changes or additions occur in a docket folder. To subscribe:
(1) Navigate to the docket folder for the action of interest; (2)
click the ``Email Alert'' link; and (3) enter your email address and
select how frequently you would like to receive emails (daily,
weekly, or monthly).
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Issue 6: Thorium Is Incorrectly Classified Under the 1954 Atomic Energy
Act
Two commenters stated that thorium is incorrectly classified under
the 1954 AEA and should be placed in a less restrictive category of
isotopes of elements.
Comment 1: Dr. Alexander Cannara stated that classifications of
various radioactive elements that were initiated by the old Atomic
Energy Commission are too broad and interfere with various
environmental and industrial realities (specifically the rare earth
industry).
Comment 2: Stephen Boyd seemed to infer that the NRC should review
and presumably revise its regulations to better support the use of
thorium reactors. In particular, the commenter suggested allowing
public and private efforts to join in the research occurring elsewhere
in the world.
Response to Comment 1: Comment 1 from Dr. Cannara is beyond the
scope of the NRC's draft Plan. Thorium is already classified
differently (as source material) than the other elements that it is
compared to (which are categorized as byproduct material). Over the
past decade, the staff has acknowledged some concerns about the fact
that thorium and uranium are present ubiquitously in nature (unlike
byproduct material) and their current classification as source material
may result in the regulation of activities not necessarily considered
by Congress in enacting the AEA. The final Plan was not revised as a
result of Comment 1.
Response to Comment 2: Comment 2 from Stephen Boyd is beyond the
scope of the NRC's draft Plan. Thorium is already classified
differently (as source material) than the fissile Uranium-235 (which is
classified as special nuclear material), with the latter element having
much more restrictive limits on possession and use. Although the NRC
does periodically review its regulations to identify areas where new
technologies may require changes to the regulations, such significant
regulatory changes are usually only undertaken when there is reasonable
certainty that such technologies will be implemented because the
process of significantly revising the regulations may be resource
intensive. The NRC will also undertake such revisions at the direction
of Congress, usually after appropriate funding is provided. In recent
years, some bills have been brought before Congress specifically
related to Mr. Boyd's concerns, but to date, Congress has not passed
those bills. The NRC is not aware of any prohibitions against private
efforts being involved in foreign research on the subject, although any
U.S. Government involvement would likely be through the U.S. Department
of Energy. The final Plan was not revised as a result of Comment 2.
III. Process Improvements
While developing this final Plan, the NRC identified changes to
improve the clarity and transparency of its processes for compliance
with Section 610 of the Regulatory Flexibility Act (RFA) and Section
212 of the Small Business Regulatory Enforcement Fairness Act (SBREFA).
The changes are described in the following sections.
A. Regulatory Flexibility Act Compliance
Section 610 of the RFA was enacted in 1980 and requires agencies to
review those regulations that have or will have a significant economic
impact on a substantial number of small entities every 10 years after
publication of such rules as final rules. The purpose of the periodic
review is to determine whether the rules should be left unchanged,
amended, or rescinded.
The NRC published its plan for Section 610 reviews in 1981. The NRC
provided a status on its compliance with RFA to the Small Business
Administration (SBA) in 1992 and 2002. In addition, the NRC provided a
status on its compliance to Congress in 2005.
The NRC has one recurring rule that has a significant economic
impact on a substantial number of small entities, its annual fee rule.
This rule amends the licensing, inspection, and annual fees charged to
its applicants and licensees. Given that a final fee rule is published
each year, the NRC has determined that it does not require a Section
610 periodic review.
The NRC will update its internal procedures to clarify the NRC
staff's responsibilities with regards to the Section 610 periodic
reviews and to include a process for submitting Unified Agenda entries
for those rulemakings that require a Section 610 periodic review.
Entries will be added to the ``Pre-rule'' section of the Unified Agenda
when a periodic review is started and will solicit public comment. The
NRC will publish the results of its periodic reviews in the ``Completed
Actions'' section of the Unified Agenda, including whether the rule
will be left unchanged, revised, or rescinded.
To further improve transparency, the NRC will update the public Web
site \4\ for RFA procedures to include a list of all final NRC rules
that impact small
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entities and whether they must undergo a periodic review required by
Section 610 of the RFA. This Web site will also include a link to the
periodic review initiation and completion entries in the Unified Agenda
for each rulemaking that must undergo a Section 610 periodic review.
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\4\ See http://www.nrc.gov/about-nrc/regulatory/rulemaking/flexibility-act.html.
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Section 610 of the RFA allows agencies to update their plan at any
time by giving notice in the Federal Register. The information on the
public Web site for RFA procedures, which informs the public of which
rules must undergo a periodic review and when and provides a link to
the results of the periodic review as published in the Unified Agenda,
supersedes the NRC's 1981 plan.
B. Small Business Regulatory Enforcement Fairness Act Compliance
Section 212 of the SBREFA was enacted in 1996 and requires that for
each rulemaking that requires a Regulatory Flexibility Analysis under 5
U.S.C. 605(b), the agency must publish a ``small entity compliance
guide.'' The SBREFA was amended by the Fair Minimum Wage Act of 2007,
which requires agencies to: (1) Publish, distribute, and post on their
public Web sites compliance guides on the same date of publication of
the final rule and (2) submit an annual report (signed by the head of
the agency) to the appropriate Congressional Committees describing the
status of the agency's compliance with the Act.
The NRC will update internal procedures to clarify the NRC staff's
responsibilities with regards to Section 212 of the SBREFA.
The NRC has issued small entity compliance guides and published
them either in the Federal Register or in the appropriate document
collection on the NRC's public Web site; however, the NRC has not
published all of its compliance guides in one location. The public Web
site for RFA procedures that lists all NRC rules that impact small
entities will also include a listing of the NRC's small entity
compliance guides and how they may be accessed.
The NRC has not submitted a status report to Congress regarding its
compliance with SBREFA. However, the NRC staff is currently drafting
the 2013 status report. A link to the status report will be included on
the Web site for RFA procedures.
IV. Final Plan for Retrospective Analysis
The NRC's final Plan describes the NRC's processes and activities
relating to retrospective analysis of existing regulations, including
discussions of the (1) efforts to incorporate risk assessments into
regulatory decision-making, (2) efforts to address the cumulative
effects of regulation, (3) the NRC's methodology for prioritizing its
rulemaking activities, (4) rulemaking initiatives arising out of the
NRC's ongoing review of its regulations related to the recent events at
the Fukushima Dai-ichi Nuclear Power Plant in Japan, and (5) the NRC's
previous and ongoing efforts to update its regulations on a systematic,
ongoing basis.
Dated at Rockville, Maryland, this 11th day of February, 2014.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2014-03849 Filed 2-21-14; 8:45 am]
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