[Federal Register Volume 77, Number 70 (Wednesday, April 11, 2012)]
[Rules and Regulations]
[Pages 21625-21628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8673]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 8
RIN 3150-AJ02
[NRC-2011-0180]
Interpretations; Removal of Part 8
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or the Commission)
is amending its regulations to remove its published General Counsel
interpretations of various regulatory provisions. These interpretations
are largely obsolete, having been superseded by subsequent statutory
and regulatory changes, and this part of the Commission's regulations
is no longer necessary.
DATES: Effective April 11, 2012.
ADDRESSES: Please refer to Docket ID NRC-2011-0180 when contacting the
NRC about the availability of information for this final rule. You may
[[Page 21626]]
access information related to this final rulemaking, which the NRC
possesses and is publicly available, by the following methods:
Federal Rulemaking Web Site: Go to http://www.regulations.gov and search for Docket ID NRC-2011-0180.
NRC's Public Document Room (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: Sean Croston, Office of the General
Counsel, U.S. Nuclear Regulatory Commission, Mail Stop O15-D21,
Washington, DC 20555-0001, telephone: 301-415-2585, email:
[email protected].
SUPPLEMENTARY INFORMATION: Various NRC regulations provide the NRC
General Counsel with authority to issue binding written interpretations
of the NRC's regulations. Between 1956 and 1977, the General Counsel of
the NRC and its precursor, the Atomic Energy Commission (AEC),
occasionally published such interpretations in Title 10 of the Code of
Federal Regulations (10 CFR) part 8. These interpretations have not
been updated, and contained various provisions that have since been
superseded by statutory and regulatory changes.
To resolve these problems and prevent any confusion resulting from
mistaken reliance upon outdated interpretations, the NRC is now
removing and reserving 10 CFR part 8. This action is consistent with
Section 2 of Executive Order 13579 (76 FR 41587; July 14, 2011), which
calls upon independent regulatory agencies to repeal outmoded and
unnecessary rules.
I. Background
Less than one year after the Atomic Energy Act of 1946 authorized
the creation of the NRC's predecessor, the AEC issued 10 CFR 40.50,
``Valid Interpretations'' (12 FR 1855; March 20, 1947). Section 40.50
was the first AEC regulation authorizing the agency's General Counsel
to issue written ``interpretations'' of other AEC regulations, which
would be valid and binding upon the Commission. The current 10 CFR 40.6
is almost identical to the original 10 CFR 40.50.
Following the enactment of 10 CFR 40.50, the AEC and then the NRC
added very similar regulations to most of its parts in Title 10 of the
CFR. Like the current rules authorizing General Counsel
interpretations, these rules did not specify where the General Counsel
would publish written interpretations.
In 1956, AEC General Counsel William Mitchell issued the first
formal General Counsel interpretation, 10 CFR 8.1, regarding inventions
under Section 152 of the Atomic Energy Act (21 FR 1414; March 3, 1956).
Four years later, General Counsel L.K. Olson issued the next formal
interpretation, published at 10 CFR 8.2, which construed the Price-
Anderson Act, a provision that had been recently added to the Atomic
Energy Act in 1957 (25 FR 4075; May 7, 1960).
The AEC General Counsel Joseph Hennessey then issued 10 CFR 8.3,
which related to the computation of time when regulatory deadlines fell
on Saturdays, Sundays, or holidays (32 FR 11379; August 5, 1967).
``Based upon comments and further consideration,'' the Commission
revoked that interpretation in 1978 (43 FR 17999; April 26, 1978).
General Counsel Hennessey also published 10 CFR 8.4, which
addressed whether states could regulate materials covered under the
Atomic Energy Act on the basis of radiological health and safety (34 FR
7273; May 3, 1969). When faced with a later industry petition for
rulemaking, the Commission defended this rule, asserting that the
interpretation remained ``correct as it stands'' (67 FR 66075; October
30, 2002).
Lastly, the NRC General Counsel Peter Strauss issued 10 CFR 8.5,
which interpreted contemporary illumination and physical search
requirements under 10 CFR 73.55 (42 FR 33265; June 30, 1977). Since the
publication of 10 CFR 8.5 and revocation of 10 CFR 8.3 one year later,
the interpretations in 10 CFR Part 8 have remained unchanged for
approximately thirty-three years.
II. Status of 10 CFR Part 8 Interpretations
The Administrator of the Office of Management and Budget's (OMB's)
Office of Information and Regulatory Affairs, recently issued a
Memorandum to the Independent Regulatory Agencies regarding ``Executive
Order 13579, `Regulation and Independent Regulatory Agencies' '' (July
22, 2011). This Memorandum encouraged independent agencies to identify
``rules that are obsolete, unnecessary, unjustified, excessively
burdensome, or counter-productive,'' and to modify or repeal them.
Moreover, the Memorandum advised that agencies ``should focus on the
elimination of rules that are no longer justified or necessary.'' This
is consistent with the longstanding policy of the Administrative
Committee of the Federal Register, which maintains that each agency
should ``amend its regulations whenever the regulations are rendered
ineffective in whole or in part'' (54 FR 9670; March 7, 1989).
i. 10 CFR 8.1
When the AEC issued its first General Counsel interpretation,
regarding the status of licensee inventions with respect to Section 152
of the Atomic Energy Act, that statute was unclear. It referred to
inventions ``made or conceived under any contract, subcontract,
arrangement, or other relationship with the Commission.'' Thus, General
Counsel Mitchell felt it necessary to announce whether agency licensees
had a ``relationship with the Commission'' under that section.
But five years later, Congress amended Section 152 to its current
form, eliminating the ``other relationship'' language. The legislative
history makes it clear that the purpose of this amendment was to ``more
clearly define the applicability of Section 152'' by eliminating its
former ``unclear'' language. See 107 Cong. Rec. 15514 (Aug. 22, 1961)
(statement of Rep. Aspinall); S. Rep. No. 87-746 at 8 (Aug. 16, 1961).
Therefore, Sec. 8.1 is ``no longer justified or necessary,'' as it
interprets a statutory provision that no longer exists.
ii. 10 CFR 8.2
The next General Counsel interpretation, 10 CFR 8.2, has remained
unchanged since 1960. It comments on the international application of
the Price-Anderson Act. The interpretation relied on ``Section 11o.''
of the Atomic Energy Act, which was the original definition of
``nuclear incident.'' That definition included occurrences causing
``damage'' without specifying the location of that damage. But since
the issuance of Sec. 8.2, that definition, subsequently retitled as
Section 11q., has been significantly amended to explicitly cover
damages ``within or outside the United States.'' The interpretation
also relied on ``Section 11u.'' of the Atomic Energy Act, the original
definition of ``public liability,'' which has since been amended and
retitled as Section 11w.
Moreover, Sec. Sec. 8.2(h)-(i) pointed to a ``confusing'' and
``ambiguous'' legislative history, ``since the language of the Act [at
that time] draws no distinction between damage received in the United
States and that received abroad.'' The interpretation concluded that
Price-Anderson insurance should cover damage to Canada or Mexico caused
by a nuclear incident in the United States.
However, as noted above, the crucial definition of ``nuclear
incident'' has been updated since 1960. In its
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amendments, Congress made it absolutely clear that ``nuclear
incidents'' under Price-Anderson would include incidents in America
causing damage ``outside the United States.'' There is no longer any
ambiguity, and thus no need for the interpretation.
Section 8.2 is also confusing, because it hinted at a potential
controversy involving ``ambiguous'' legislation where there is none.
The NRC understands that some stakeholders still rely on Sec. 8.2 as
valid guidance on the scope of the Price-Anderson Act. The NRC is
attempting to end any such confusion by removing this rule, which has
been rendered obsolete and is thus ``no longer justified or
necessary.''
iii. 10 CFR 8.3
As indicated previously, the Commission revoked the former General
Counsel interpretation at 10 CFR 8.3 in 1978.
iv. 10 CFR 8.4
Nine years ago, in response to a petition for rulemaking, the
Commission reaffirmed the position set forth in 10 CFR 8.4, which
discussed state regulation of materials covered under the Atomic Energy
Act on the basis of radiological health and safety (67 FR 66075;
October 30, 2002). Although this interpretation was never updated to
incorporate subsequent court decisions and other events, the NRC
continues to adhere to the substance of the interpretation in Sec.
8.4. The removal of 10 CFR part 8 should not be read to imply a change
in the NRC's substantive position on this or any other issue.
v. 10 CFR 8.5
The last General Counsel interpretation, 10 CFR 8.5, referred to
the illumination and physical search requirements contained in a
previous version of 10 CFR 73.55. However, Sec. 73.55 has been amended
at least 18 times since this interpretation was issued in June 1977.
The latest version of Sec. 73.55 bears little resemblance to the
version interpreted in Sec. 8.5.
For example, the interpretation relied on provisions in Sec. Sec.
73.55(c)(4), (c)(5), and (d)(1) that no longer exist. Moreover, it
cited forthcoming revisions to a guidance document that was itself
superseded thirty years ago. Unsurprisingly, the NRC staff recently
concluded that Sec. 8.5 is no longer needed from a technical
perspective, and recommended removing that provision. Thus, it is clear
that the interpretation at Sec. 8.5 has also been ``rendered
ineffective'' and should be removed.
III. Publication of Part 8 Interpretations
Under the Administrative Procedure Act, 5 U.S.C. 552(a)(1)(D), all
``interpretations of general applicability formulated and adopted by
the agency'' must be ``state[d] and currently publish[ed] in the
Federal Register for the guidance of the public.'' \1\ All of the
General Counsel's formal interpretations in 10 CFR Part 8 were properly
published in the Federal Register. Other agencies also continue to
publish their legal interpretations in the Federal Register. See, e.g.,
Department of Veterans Affairs, ``Summary of Precedent Opinions of the
General Counsel'' (76 FR 4430; January 25, 2011); Department of Energy,
``Office of the General Counsel Ruling 1995-1 Concerning 10 CFR Parts
830 and 835'' (61 FR 4209; February 5, 1996).
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\1\ On the other hand, everyday interpretations of particular
applicability regarding specific factual circumstances are not and
need not be published in the Federal Register. See U.S. Department
of Justice, Attorney General's Manual on the Administrative
Procedure Act at 22-23 (1947) (``An advisory interpretation relating
to a specific set of facts is not subject to [the publication
requirement]. For example, a reply from the agency's general counsel
to an inquiry from a member of the public as to the applicability of
a statute to a specific set of facts need not be published.'').
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However, publication in the CFR is another matter. Beginning with
an opinion by then-Judge Scalia, the Court of Appeals for the D.C.
Circuit has repeatedly held that under a provision of the Federal
Register Act, 44 U.S.C. 1510, ``the Code of Federal Regulations [may]
contain only documents having general applicability and legal effect.''
Wilderness Society v. Norton, 434 F.3d 584, 596 (D.C. Cir. 2006),
quoting Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 539
(D.C. Cir. 1986). See also American Mining Congress v. Mine Safety &
Health Admin., 995 F.2d 1106, 1109 (D.C. Cir. 1993) (``44 U.S.C. 1510
limits publication in [the] [C]ode to rules `having general
applicability and legal effect.' '').
Moreover, the administrative regulations implementing 44 U.S.C.
1510 confirm that the CFR should ``contain * * * Federal regulation[s]
of general applicability and legal effect.'' 1 CFR 8.1. The key to this
limitation on publication in the CFR is ``legal effect.''
The D.C. Circuit long-ago established that documents with ``legal
effect'' are those that ``ha[ve] the force and effect of statute.''
Sheridan-Wyoming Coal Co. v. Krug, 172 F.2d 282, 287 (D.C. Cir. 1949).
The interpretations in 10 CFR Part 8 do not have the binding force and
effect of statute (67 FR 66076; October 30, 2002) (agreeing that the
NRC's 10 CFR part 8 interpretations ``presumably would not be binding
on a court''). Likewise, regulations define the term ``Document having
general applicability and legal effect'' to mean ``any document issued
under proper authority prescribing a penalty or course of conduct,
conferring a right, privilege, authority, or immunity, or imposing an
obligation.'' 1 CFR 1.1. Interpretive rules like those in 10 CFR part 8
do not meet this definition, as the General Counsel's interpretations
do not have ``legal effect'' like the substantive regulations published
elsewhere in 10 CFR chapter I.
Therefore, the NRC has concluded that it would be more prudent to
remove the obsolete interpretations in 10 CFR Part 8 than to attempt to
update these provisions. Any future formal General Counsel
interpretations will be published only in the Federal Register.
IV. Rulemaking Procedure
Because this rulemaking concerns interpretive rules, the notice and
comment provisions of the Administrative Procedure Act do not apply
under 5 U.S.C. 553(b)(A), and this rule is immediately effective under
5 U.S.C. 553(d)(2). Additionally, the NRC has determined that a post-
promulgation comment period would serve no public interest under 10 CFR
2.804(e)(2) because the interpretations have been superseded by
subsequent statutory and regulatory changes.
V. Environmental Impact: Categorical Exclusion
This final rule is the type of action described in categorical
exclusion 10 CFR 51.22(c)(1). Therefore, the NRC has not prepared an
environmental impact statement or an environmental assessment for this
rule.
VI. Paperwork Reduction Act Statement
This final rule does not contain information collection
requirements and, therefore, is not subject to the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.).
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a request for information or an information collection
requirement unless the requesting document displays a currently valid
OMB control number.
VII. Regulatory Analysis
A regulatory analysis has not been prepared for this final rule
because the NRC is eliminating regulations that have been superseded by
subsequent statutory and regulatory actions, and
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this rule has no impact on health, safety, or the environment. There is
no cost to licensees, the NRC, or other Federal agencies.
VIII. Backfit Analysis
The NRC has determined that the backfit rule does not apply to this
final rule because removal of these interpretations does not involve
any backfits as defined in 10 CFR 50.109(a)(1). Therefore, a backfit
analysis is not required for this rule.
IX. Congressional Review Act (CRA)
In accordance with the CRA, the NRC has determined that this action
is not a major rule and has verified this determination with OMB's
Office of Information and Regulatory Affairs.
List of Subjects in 10 CFR Part 8
Intergovernmental relations, Inventions and patents, Nuclear power
plants and reactors.
PART 8--INTERPRETATIONS [REMOVED AND RESERVED]
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended; the Energy Reorganization
Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is removing
and reserving 10 CFR part 8.
0
1. 10 CFR part 8 is hereby removed and reserved.
Dated at Rockville, Maryland, this 3rd day of April 2012.
For the Nuclear Regulatory Commission.
Michael F. Weber,
Acting Executive Director for Operations.
[FR Doc. 2012-8673 Filed 4-10-12; 8:45 am]
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