[Federal Register Volume 83, Number 195 (Tuesday, October 9, 2018)]
[Proposed Rules]
[Pages 50533-50536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21804]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 2

[Docket No. PRM-2-15; NRC-2015-0264]


Agency Procedures for Responding to Adverse Court Decisions and 
Addressing Funding Shortfalls

AGENCY: Nuclear Regulatory Commission.

[[Page 50534]]


ACTION: Petition for rulemaking; denial.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is denying a 
petition for rulemaking (PRM) submitted on October 22, 2015, by Jeffrey 
M. Skov (the petitioner), and supplemented on December 7, 2015, March 
1, 2016, March 21, 2016, and March 1, 2017. The petition was docketed 
by the NRC on November 10, 2015, and was assigned Docket No. PRM-2-15. 
The petitioner requests that the NRC amend its rules of practice to 
establish procedures for responding to adverse court decisions and to 
annually report to the public each instance where the NRC does not 
receive ``sufficient funds reasonably necessary to implement in good 
faith its statutory mandates.'' The NRC is denying the petition because 
the petitioner has not identified shortcomings in the NRC's current 
regulations or demonstrated a need for the requested changes.

DATES: The docket for the petition for rulemaking, PRM-2-15, is closed 
on October 9, 2018.

ADDRESSES: Please refer to Docket ID NRC-2015-0264 when contacting the 
NRC about the availability of information for this action. You may 
obtain publicly-available information related to this action by any of 
the following methods:
     Federal Rulemaking website: Go to http://www.regulations.gov and search for Docket ID NRC-2015-0264. Address 
questions about NRC dockets to Carol Gallagher; telephone: 301-415-
3463; 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 obtain publicly-available documents online in the 
ADAMS Public Documents collection 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, 301-415-4737, or by email to [email protected]. The 
ADAMS accession number for each document referenced (if it is available 
in ADAMS) is provided the first time that it is mentioned in the 
SUPPLEMENTARY INFORMATION section. The petition is available in ADAMS 
under Accession No. ML15314A075.
     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.

FOR FURTHER INFORMATION CONTACT: Olivia Mikula, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001, 
telephone: 301-287-9107; email: [email protected].

SUPPLEMENTARY INFORMATION:

I. The Petition

    Section 2.802 of title 10 of the Code of Federal Regulations (10 
CFR), ``Petition for rulemaking--requirements for filing,'' provides an 
opportunity for any interested person to petition the Commission to 
issue, amend, or rescind any regulation. The NRC received a PRM from 
Mr. Jeffrey M. Skov on October 22, 2015, and supplemental information 
from the petitioner on December 7, 2015 (ADAMS Accession No. 
ML15342A005), March 1, 2016 (ADAMS Accession No. ML16063A026), March 
21, 2016 (ADAMS Accession No. ML16082A020), and March 1, 2017 (ADAMS 
Accession Nos. ML17111A673 and ML17111A657). In the PRM and associated 
supplements, the petitioner requests that the NRC amend 10 CFR part 2, 
``Agency rules of practice and procedure,'' to establish procedures for 
(1) responding to adverse court decisions, and (2) annually reporting 
to the public each instance where the NRC does not receive sufficient 
funds reasonably necessary to implement in good faith its statutory 
mandates.
    In his PRM, the petitioner raises concerns about the NRC's 
independence, its mission-related functions, and its commitment to 
transparency in light of the adverse decision In re Aiken County. See 
In re Aiken Cty., 725 F.3d 255 (D.C. Cir. 2013). In that case, a group 
of individuals and government organizations filed a petition for writ 
of mandamus against the NRC in the U.S. Court of Appeals for the 
District of Columbia Circuit. The Aiken County petitioners challenged 
the NRC's decision to cease review and consideration of the license 
application filed by the U.S. Department of Energy (DOE) to construct a 
geologic repository at Yucca Mountain, Nevada, and claimed that this 
decision constituted agency action that was unlawfully withheld or 
unreasonably delayed. In August 2013, the court issued a decision 
granting the petition for writ of mandamus and concluding that the NRC 
was ``defying a law enacted by Congress, and . . . doing so without any 
legal basis.'' Id. The court directed the NRC to continue the 
proceeding and to make whatever progress it could with the remaining 
funds. According to Mr. Skov, the Aiken County decision raises concerns 
about the NRC's independence, its mission-related functions, and its 
commitment to transparency.
    Mr. Skov's PRM proposes two rules. The first proposed rule would 
require the NRC to take certain actions following the receipt of a 
court decision (and after the expiration of rehearing and appeal 
rights) finding that the agency violated applicable law. Specifically, 
the rule would require (1) an identification and determination of the 
causes of each violation; (2) an ``extent of condition'' evaluation to 
determine whether the NRC's implementation of other statutes and 
regulations is similarly affected by the violation; (3) implementation 
of immediate corrective actions based on the evaluation performed; (4) 
implementation of corrective actions to prevent recurrence; and (5) 
preparation of a public report documenting the agency's review. The 
rule also would require the NRC to seek investigation by the U.S. 
Department of Justice (DOJ) as to whether the agency has adequate 
oversight mechanisms in place to prevent the violation of applicable 
laws and whether any violations of Federal criminal laws have occurred 
(particularly laws prohibiting obstruction of Federal proceedings and 
conspiracies to commit offense or to defraud the United States). In 
addition, the rule would require the NRC to decide whether to appeal or 
seek rehearing in accordance with the American Bar Association's (ABA) 
Model Rules of Professional Conduct.
    The second proposed rule would require the NRC to disclose annually 
``each instance where [the NRC] does not receive sufficient funds 
reasonably necessary to implement in good faith its statutory 
mandates.'' In these instances, the proposed rule would have the NRC 
publicly disclose whether the NRC was directed not to request funds, 
requested funds but did not receive them, or determined on its own not 
to request funds. Further, the rule would require ``a discussion of the 
consequences of each instance with respect to (1) public safety and 
health; (2) environmental protection; (3) the common defense and 
security; (4) the reputation/credibility of the agency as a `trusted, 
independent, transparent, and effective nuclear regulator;' and (5) 
collateral fiscal impacts.''
    On February 17, 2016 (81 FR 8021), the NRC published a notice of 
docketing of PRM-2-15. The NRC elected not to request public comment on 
PRM-2-15 because the petition was sufficiently

[[Page 50535]]

comprehensive for the NRC to address the issues contained therein. 
Accordingly, there were no public comments on this petition.

II. Reasons for Denial

    In the original petition and subsequent submittals, the petitioner 
focuses on the outcome of the Aiken County decision and perceived 
agency inaction with regard to the court's ruling. As discussed 
further, the NRC is denying the petition because the petitioner has not 
identified shortcomings in the NRC's current regulations or 
demonstrated a need for the proposed requirements. The NRC took into 
account the Sec.  2.803(h)(1) considerations for an agency 
determination on a petition for rulemaking with particular attention to 
Sec.  2.803(h)(1)(vi), relevant agency policies and current practice.
    The NRC is denying further consideration of the petitioner's first 
proposed rule because it does not present a practical process for 
agency accountability and because the NRC already has the tools in 
place to provide for independent evaluation of agency actions. The 
petitioner's proposed rule presents the goal of requiring the agency to 
reflect upon the reasons for a loss it has sustained in court and to 
implement corrective actions in light of any lessons learned. However, 
for the reasons discussed below, the proposed rule is neither necessary 
nor appropriate for meeting this goal.
    With regard to the trigger for the proposed rule--a finding by a 
court of competent jurisdiction that the NRC violated applicable law--
adverse court decisions that relate to the NRC's licensing 
responsibilities do not necessarily reflect misconduct. Rather, the 
NRC's losses ordinarily have involved a failure to explain the basis 
for a technical conclusion,\1\ a request for further development of the 
administrative record,\2\ or a court's determination that the legal 
position that the NRC has adopted on a point of law is incorrect.\3\ In 
such circumstances, the NRC's response to judicial direction is 
transparent so that the public is able to see how the agency has 
addressed the concerns in the decision.\4\ Indeed, after the Aiken 
County decision was rendered by the D.C. Circuit Court of Appeals, the 
Commission responded by soliciting the views of all participants 
involved and issuing an order detailing how the agency would continue 
with the licensing process. See U.S. Department of Energy (High-Level 
Waste Repository), CLI-13-08, 78 NRC 219 (2013). This included a 
direction to staff to complete and issue the Safety Evaluation Report 
associated with the construction authorization application and make 
associated documents available on the NRC's recordkeeping system.
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    \1\ See, e.g. Shieldalloy Metallurgical Corp. v. NRC, 707 F.3d 
371 (D.C. Cir. 2013); Honeywell International, Inc. v. NRC, 628 F.3d 
568 (D.C. Cir. 2010).
    \2\ See, e.g., Brodsky v. NRC, 704 F.3d 113 (2d Cir. 2013).
    \3\ See, e.g., San Luis Obispo Mothers for Peace v. NRC, 449 
F.3d 1016 (9th Cir. 2006).
    \4\ See, e.g. Shieldalloy Metallurgical Corp. (Decommissioning 
of the Newfield, New Jersey Site), CLI-13-06, 78 NRC 155 (2013); 
Honeywell Int'l, Inc. (Metropolis Works Uranium Conversion 
Facility), CLI-13-01, 77 NRC 1 (2013); Entergy Nuclear Operations, 
Inc., Indian Point Nuclear Generating Unit 3, Draft Environmental 
Assessment and Finding of No Significant Impact, 78 FR 20144 (April 
3, 2013); Pacific Gas & Electric Co. (Diablo Canyon Power Plant 
Independent Spent Fuel Storage Installation), CLI-07-11, 65 NRC 148 
(2007).
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    Moreover, the vast majority of NRC licensing cases that result in 
Federal court litigation have already been the subject of litigation 
before the Atomic Safety and Licensing Boards and the Commission, such 
that opportunities to identify deficiencies have been provided through 
the Commission's internal adjudicatory process. Further, the Agency's 
Office of the General Counsel (OGC) ensures that the Commission and 
pertinent staff offices are informed of court decisions and the need 
for any responsive action to ensure compliance with the holding. In 
addition, OGC will provide advice on the impact, if any, of that 
decision on any current and future NRC decisionmaking. Given these 
facts, the additional processes in the proposed rule are not necessary.
    In addition, the petitioner's proposed rule would require an 
independent evaluation of agency action in light of an adverse court 
decision. The NRC's Office of the Inspector General, however, already 
has the authority to perform that function. The Inspector General (IG) 
is authorized ``to provide policy direction for and to conduct, 
supervise, and coordinate audits and investigations relating to the 
programs and operations of'' the agency in which the office is 
established. See 5 United States Code (U.S.C.) App 3, section 4(a)(1). 
This responsibility includes reporting ``to the Attorney General 
whenever the Inspector General has reasonable grounds to believe there 
has been a violation of Federal criminal law.'' See id. section 4(d). 
The IG prepares a semiannual report to Congress which includes ``a 
description of significant problems, abuses, and deficiencies relating 
to the administration of programs'' and agency operations. See id. 
section 5(a)(1). Notably, this report includes ``a description of the 
recommendations for corrective action made by the [Office of the 
Inspector General] during the reporting periods with respect to 
significant problems, abuses, or deficiencies.'' See id. section 
5(a)(2).\5\ The IG may initiate an investigation upon the request of an 
employee or member of the public. Although investigation by the IG is 
not necessarily precipitated by a specific event, the duties and 
abilities of the IG provide the authority and flexibility to 
investigate a wide range of agency action. Therefore, the proposed rule 
essentially requests the creation of a process of independent 
investigation that is duplicative of the one that already exists.\6\
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    \5\ Office of the Inspector General reports and associated 
corrective action recommendations for the NRC are available on the 
public website. See U.S. NRC, OIG Reports, available at https://www.nrc.gov/reading-rm/doc-collections/insp-gen/ (last updated 
October 19, 2017).
    \6\ In additional submissions to the NRC, the petitioner 
emphasized the same or similar arguments for the implementation of 
the proposed rules. His March 1, 2017, submission notes that the 
IG's Office did not prevent the statutory violation that led to the 
Aiken County proceeding. However, there is little explanation as to 
why the implementation of a process that essentially duplicates that 
of the independent investigative authority of the Office of the 
Inspector General would serve to effectively and efficiently 
eliminate the possibility of a violation in the future. Indeed, the 
IG opened a report to investigate wrongdoing associated with the 
NRC's decision to halt progress on DOE's Yucca Mountain application 
and the Aiken County court was aware of the findings. See In re 
Aiken Cty., 725 F.3d at 268 (Randolph, J., concurring) (citing U.S. 
Nuclear Regulatory Commission, Office of the Inspector General, OIG 
Case NO. 11-05, NRC Chairman's Unilateral Decision to Terminate 
NRC's Review of DOE Yucca Mountain Repository License Application 7-
10, 17, 44-46 (2011)).
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    Similarly, the proposal to seek DOJ review of an adverse decision 
is not necessary because the DOJ is a party to, or has some involvement 
in, virtually all of the program-related cases in which the agency is 
named as a defendant. The Hobbs Act, which is the primary vehicle 
through which NRC decisions are challenged, requires that the United 
States be named as a respondent. See 28 U.S.C. 2344. And although the 
Hobbs Act did not apply to, and the United States was not named as a 
respondent in, the Aiken County proceeding, the NRC consulted with the 
DOJ in its defense of the case. Moreover, the court specifically 
requested the views of the United States on several issues, and the 
United States filed its own brief in response to the court's request. 
Finally, to the extent the agency is sued directly in Federal district 
court, it is represented by the DOJ both on

[[Page 50536]]

programmatic matters as well as matters involving agency personnel or 
procurement. See, e.g., Brodsky v. NRC, No. 09-Civ-10594 (LAP), 2015 WL 
1623824 (S.D.N.Y. Feb. 26, 2015); Khoury v. Meserve, 268 F. Supp. 2d 
600 (D. Md. 2003). Consequently, the DOJ was well aware of the NRC's 
filings in the Aiken County case specifically and is deeply involved in 
the NRC's litigation matters generally.
    With respect to the codification of the need to make appeals and 
rehearing decisions in accordance with the Model Rules of Professional 
Conduct, each NRC attorney is already subject to the disciplinary rules 
of the bar in which he or she is admitted as well as the courts in 
which he or she appears. All decisions to seek further review of an 
adverse ruling are coordinated with the DOJ and, as necessary, the 
Solicitor General, who are likewise bound by applicable disciplinary 
rules. It is therefore not necessary to reference the ABA's Model Rules 
of Professional Conduct in the NRC's regulations.
    The NRC therefore denies further consideration of the petitioner's 
first proposed rule for the reasons stated.
    The NRC is denying further consideration of the petitioner's second 
proposed rule because it is the NRC's practice to refrain from 
disclosing pre-decisional budgetary information, consistent with Office 
of Management and Budget (OMB) guidance. OMB Circular A-11 directs 
agencies to withhold pre-decisional materials underlying budget 
deliberations. See OMB Circular A-11, Preparation, Submission, and 
Execution of the Budget, 22-1 (July 2016). Circular A-11 directs 
agencies ``not [to] release agency justifications provided to OMB and 
any agency future year plans or long-range estimates to anyone outside 
of the Executive Branch'' unless otherwise allowed under the Circular. 
Communications within the Executive Branch that ultimately lead to the 
President's budgetary decisions are not disclosed either by the NRC or 
by OMB. The petitioner's proposed rule would require the NRC to 
disclose annually certain budget decisions and the Executive Branch 
communications underlying those decisions. On the basis of our practice 
of compliance with OMB guidance, the NRC will not proceed with the 
petitioner's proposed rule.
    The arguments presented by the petitioner focus heavily on the 
outcome and safety consequences of the Aiken County decision, but they 
fail to justify the need for additional processes in the NRC's 
regulations. In light of the processes currently in place, the NRC did 
not identify any safety, environmental, or security issues associated 
with the petitioner's concerns. Further, the NRC continues to be 
committed to its safety mission and to promoting a positive safety 
culture.\7\
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    \7\ The NRC has processes to self-assess and promote the safety 
culture of the agency. In conjunction with the IG's Office, the NRC 
participates in a safety culture climate survey to evaluate the 
comfort of the agency's workforce to raise safety concerns through 
these processes. The IG's Office appraises the outcome of these 
surveys in reports and provides corrective action recommendations, 
where appropriate. The most recent IG report on this topic was 
released on April 15, 2016. See U.S. NRC, OIG Reports, available at 
https://www.nrc.gov/reading-rm/doc-collections/insp-gen/ (last 
updated October 19, 2017).
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    With regard to the petitioner's concerns about agency inaction with 
respect to Yucca Mountain, the NRC has used virtually all of the 
remaining funds appropriated through fiscal year 2011 by Congress for 
the Yucca Mountain project to further review the application, 
consistent with the Aiken County decision and the Commission's Order in 
response to the case. Among other things, the NRC staff completed the 
Safety Evaluation Report and a Final Supplement to DOE's Environmental 
Impact Statement for the Yucca Mountain geologic repository. The NRC 
staff also placed millions of items of discovery material from the 
adjudicatory proceeding relating to the application in the public 
portion of the agency's online records collection.

III. Conclusion

    For the reasons stated in Section II, the NRC is denying PRM-2-15. 
The petition failed to identify a need for the proposed rules. Further, 
the NRC evaluated the petition in light of the considerations described 
in Sec.  2.803(h)(1) and found the petition inconsistent with current 
agency policies and practice.

    Dated at Rockville, Maryland, this 2nd day of October 2018.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2018-21804 Filed 10-5-18; 8:45 am]
 BILLING CODE 7590-01-P