Interpretations; Removal of Part 8, 21625-21628 [2012-8673]

Download as PDF Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations wreier-aviles on DSK5TPTVN1PROD with RULES Final Regulatory Flexibility Analysis Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601–612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. There are approximately 1,500 producers of processed pears in the regulated production area and approximately 51 handlers of processed pears subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (SBA)(13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,000,000. According to the Noncitrus Fruits and Nuts 2010 Preliminary Summary issued in January 2011 by the National Agricultural Statistics Service, the total farm-gate value of summer/fall processed pears grown in Oregon and Washington for 2010 was $76,427,000. Based on the number of processed pear producers in the Oregon and Washington, the average gross revenue for each producer can be estimated at approximately $50,951. Furthermore, based on Committee records, the Committee has estimated that each of the Northwest pear handlers currently ship less than $7,000,000 worth of processed pears on an annual basis. From this information, it is concluded that the majority of producers and handlers of Oregon and Washington processed pears may be classified as small entities. In addition, there are five processing plants in the production area, with one in Oregon and four in Washington. All five processors would be considered large entities under the SBA’s definition of small businesses. This rule continues in effect the action that decreased the assessment rate established for the Committee and collected from handlers for the 2011– 2012 and subsequent fiscal periods from $8.41 to $7.73 per ton for summer/fall processed pears handled. The Committee unanimously recommended VerDate Mar<15>2010 14:48 Apr 10, 2012 Jkt 226001 2011–2012 expenditures of $926,933 and an assessment rate of $7.73 per ton for summer/fall processed pears. The assessment rate of $7.73 is $0.78 lower than the previous rate. The Committee recommended the assessment rate decrease because the summer/fall processed pear promotion budget was reduced. The quantity of assessable processed pears for the 2011–2012 fiscal period is estimated at 120,000 tons. Thus, the $7.73 rate should provide $927,600 in assessment income. Income derived from summer/fall processed pear handler assessments, interest and other income will be adequate to cover the budgeted expenses. This rule continues in effect the action that decreased the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers. In accordance with the Paperwork Reduction Act of 1991 (44 U.S.C. Chapter 35), the order’s information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581–0189, Generic Fruit Crops. No changes in those requirements as a result of this action are anticipated. Should any changes become necessary, they would be submitted to OMB for approval. This action imposes no additional reporting or recordkeeping requirements on either small or large OregonWashington processed pear handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. In addition, the Committee’s meeting was widely publicized throughout the Oregon-Washington pear industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the June 2, 2011, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Comments on the interim rule were required to be received on or before October 31, 2011. No comments were received. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule, without change. PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 21625 To view the interim rule, go to: https://www.regulations.gov/ #!documentDetail;D=AMS-FV-11-00700001. This action also affirms information contained in the interim rule concerning Executive Orders 12866 and 12988, the Paperwork Reduction Act (44 U.S.C. Chapter 35), and the E-Gov Act (44 U.S.C. 101). After consideration of all relevant material presented, it is found that finalizing the interim rule, without change, as published in the Federal Register (76 FR 53811, August 30, 2011) will tend to effectuate the declared policy of the Act. List of Subjects in 7 CFR Part 927 Marketing agreements, Pears, Reporting and recordkeeping requirements. PART 927—PEARS GROWN IN OREGON AND WASHINGTON Accordingly, the interim rule amending 7 CFR part 927 which was published at 76 FR 53811 on August 30, 2011, is adopted as a final rule, without change. ■ Dated: April 5, 2012. David R. Shipman, Acting Administrator, Agricultural Marketing Service. [FR Doc. 2012–8638 Filed 4–10–12; 8:45 am] BILLING CODE 3410–02–P NUCLEAR REGULATORY COMMISSION 10 CFR Part 8 RIN 3150–AJ02 [NRC–2011–0180] Interpretations; Removal of Part 8 Nuclear Regulatory Commission. ACTION: Final rule. AGENCY: 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 SUMMARY: E:\FR\FM\11APR1.SGM 11APR1 21626 Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 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 https://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. 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. SUPPLEMENTARY INFORMATION: wreier-aviles on DSK5TPTVN1PROD with 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. VerDate Mar<15>2010 14:48 Apr 10, 2012 Jkt 226001 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 counterproductive,’’ 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 PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 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, § 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 § 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, §§ 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 E:\FR\FM\11APR1.SGM 11APR1 Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 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 § 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 § 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. wreier-aviles on DSK5TPTVN1PROD with RULES 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, § 73.55 has been amended at least 18 times since this interpretation was issued in June 1977. The latest version of § 73.55 bears little resemblance to the version interpreted in § 8.5. For example, the interpretation relied on provisions in §§ 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 § 8.5 is no longer needed from a technical perspective, and recommended removing that provision. Thus, it is clear that the interpretation at § 8.5 has also been ‘‘rendered ineffective’’ and should be removed. VerDate Mar<15>2010 14:48 Apr 10, 2012 Jkt 226001 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). 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, 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.’’). PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 21627 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 postpromulgation 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 E:\FR\FM\11APR1.SGM 11APR1 21628 Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 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. ■ 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] BILLING CODE 7590–01–P FINANCIAL STABILITY OVERSIGHT COUNCIL 12 CFR Part 1301 RIN 4030–AA02 Implementation of the Freedom of Information Act Financial Stability Oversight Council. ACTION: Final rule. wreier-aviles on DSK5TPTVN1PROD with RULES AGENCY: The Financial Stability Oversight Council (the ‘‘Council’’ or ‘‘FSOC’’) issues this rule to implement provisions of the Freedom of Information Act (the ‘‘FOIA’’). This final rule implements the requirements of the FOIA by setting forth procedures for requesting access to, and making SUMMARY: VerDate Mar<15>2010 14:48 Apr 10, 2012 Jkt 226001 disclosures of, information contained in Council records. DATES: Effective date: May 11, 2012. FOR FURTHER INFORMATION CONTACT: Amias Gerety, Deputy Assistant Secretary, Financial Stability Oversight Council, at (202) 622–0502. SUPPLEMENTARY INFORMATION: I. Background The Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111–203 (the ‘‘Act’’) establishes the Council, which, among other functions, is responsible for identifying and responding to threats to the financial stability of the United States. Section 112(d)(5)(C) of the Act provides that the FOIA, ‘‘including the exceptions thereunder, shall apply to any data or information submitted under this subsection and subtitle B.’’ On March 28, 2011 (76 FR 17038), the Council published a proposed rule that would implement the requirements of the FOIA as they apply to the Council. The proposed rule, among other things, described how information would be made available and the timing and procedures for public requests. See the March 28, 2011 notice for a description of the proposed rule. II. This Final Rule and Discussion of Public Comments The comment period closed on May 27, 2011, and the Council received comments from nine entities on the proposed rule. Comments were received from an insurance company, trade associations, a federal government agency, and consumer groups. This section of the preamble sets out significant comments raised, along with FSOC’s responses to these comments, and identifies where the Council has made changes to the regulations. Several commenters indicated that it was unclear whether FOIA requests could be submitted by electronic means. In response, the regulation has been modified throughout to clarify that FOIA requests may be submitted via the Internet and that online methods may be used throughout the FOIA process. Although it is likely that the Council will initially rely on a Web form to enable electronic receipt of FOIA requests, the Council anticipates that, eventually, email requests also could be accommodated. Section 1301.2, as proposed, stated that, even though a FOIA exemption might apply, the Council could make discretionary disclosures if not precluded by law. Some commenters expressed concern that this provision would give the Council unfettered PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 discretion and would result in the unnecessary disclosure of sensitive information. The Council is sympathetic to these concerns and, as suggested by the commenters, has modified the language to make clear that the Council will make discretionary disclosures after weighing the particular facts and circumstances of each request. In considering requests under the FOIA, the Council will carefully consider the balance between protecting sensitive information in accordance with the FOIA, and the public interest in disclosure. It will also take steps to assure consistent handling of multiple requesters for the same information. Some commenters expressed concern about what they perceived as overlystrict procedural requirements in § 1301.5. The Council has revised this section of the rule to explicitly afford greater latitude for accepting and processing requests that contain one or more technical deficiencies. In particular, § 1301.5(d), as added in the final rule, provides that the Council may not reject a request solely because the request contains one or more technical deficiencies. Moreover, the regulation now more clearly states that requesters will be notified when their requests fail to meet the requirements that allow for adequate and timely processing. Some commenters suggested that § 1301.5 should also be modified to make clear that fee waiver requests do not necessarily need to be included with the original FOIA request. Rather, commenters urged the Council to allow fee-waiver requests to be submitted at any time prior to the processing of the FOIA request. Accordingly, the Council modified § 1301.5(b)(7) to allow a requester to seek a fee waiver at a later time. Regarding the procedures in § 1301.6 governing records originating from other agencies, some commenters suggested that referrals to other agencies be prohibited whereas others suggested that such referrals be required in all cases. The referral procedures as originally proposed are consistent with the statute and with case law, and FSOC has determined to retain those procedures. However, FSOC has modified § 1301.6 to more clearly describe how it will treat documents originated by federal agencies and state agencies. In § 1301.8, governing the format of the agency’s response to FOIA requests and its description of the records withheld, some commenters objected to the use of the word ‘‘amount’’ rather than ‘‘volume,’’ suggesting that FSOC would only be providing information regarding redactions within documents E:\FR\FM\11APR1.SGM 11APR1

Agencies

[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.

-----------------------------------------------------------------------

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 https://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

[[Page 21627]]

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).
---------------------------------------------------------------------------

    \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.'').
---------------------------------------------------------------------------

    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

[[Page 21628]]

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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