[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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  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modified, streamlined, expanded, or repealed.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

[[Page 9984]]

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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