[Federal Register Volume 77, Number 70 (Wednesday, April 11, 2012)]
[Rules and Regulations]
[Pages 21625-21628]
From the Federal Register Online via the Government Printing 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are largely obsolete, having been superseded by subsequent statutory 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

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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: 
Sean.Croston@nrc.gov.

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superseded by statutory and regulatory changes.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mistaken reliance upon outdated interpretations, the NRC is now 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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