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11 April 2008
[Federal Register: April 11, 2008 (Volume 73, Number 71)]
[Proposed Rules]
[Page 19761-19766]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11ap08-8]
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DEPARTMENT OF ENERGY
10 CFR Part 820
RIN 1990-AA30
Procedural Rules for DOE Nuclear Activities
AGENCY: Department of Energy.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Energy (DOE) is proposing to amend its
Procedural Rules for DOE Nuclear Activities to be consistent with
section 610 of the Energy Policy Act of 2005, Public Law 109-58 (EPAct
2005), signed into law by President Bush on August 8, 2005. Section 610
amends provisions in section 234A. of the Atomic Energy Act of 1954
(AEA) concerning civil penalties with respect to certain DOE
contractors, subcontractors and suppliers. This proposed rule would
revise DOE's regulations to be consistent with the changes made by
section 610.
DATES: Public comments on this proposed rule will be accepted until May
27, 2008.
ADDRESSES: You may submit comments, identified by RIN 1990-AA30, by any
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
E-mail: Martha.Thompson@hq.doe.gov.
Mail: Martha Thompson, Deputy Director, (HS-40), Office of
Enforcement, Office of Health, Safety and Security, U.S. Department of
Energy, 20300 Century Blvd., Germantown, Maryland 20874.
You may obtain copies of comments received by DOE from the Office
of Health, Safety and Security Web site: http://www.hss.energy.gov/
Enforce/ or by contacting Martha Thompson of the Office of Enforcement.
FOR FURTHER INFORMATION CONTACT: Sophia Angelini, Attorney-Advisor (GC-
52), Office of the General Counsel, U.S. Department of Energy, 1000
Independence Avenue, SW., Washington, DC 20585, (202) 586-6975; or
Martha Thompson, Deputy Director (HS-40), Office of Enforcement, Office
of Health, Safety and Security, U.S. Department of Energy, 20300
Century Blvd., Germantown, Maryland 20874, (301) 903-5018 or by e-mail,
martha.thompson@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion of the Proposed Rule
III. Public Comment Procedures
IV. Regulatory Review
I. Background
In 1988, Congress amended the Atomic Energy Act of 1954 (AEA) (42
U.S.C. 2011 et seq.) by adding section 234A. (commonly referred to as
the Price-Anderson Act) (42 U.S.C. 2282a.) that establishes a system of
civil penalties for DOE contractors, subcontractors, and suppliers that
are covered by an indemnification agreement under section 170d. of the
AEA (42 U.S.C. 2210d.). The civil penalties cover DOE contractors,
subcontractors and suppliers that violate, or whose employees violate,
any applicable rule, regulation or order related to nuclear safety
issued by the Secretary of Energy. Section 234A. specifically exempted
seven institutions (and any subcontractors or suppliers thereto) from
such civil penalties and directed the Secretary of Energy to determine
by rule whether nonprofit educational institutions should receive
automatic remission of any penalty. On August 17, 1993, DOE promulgated
``Procedural Rules for DOE Nuclear Activities,'' codified at 10 CFR
Part 820 (Part 820), to provide for the enforcement under section 234A.
of the AEA of DOE nuclear safety requirements. Under Part 820, the
exemption provision for the seven institutions is set forth in section
820.20(c); the provision for an automatic remission of civil penalties
for ``nonprofit educational institutions'' is in section 820.20(d).
DOE is proposing to amend subpart B of Part 820 to incorporate the
changes required by section 610 of EPAct 2005. Section 610, entitled
``Civil Penalties,'' amended section 234A. of the AEA by:
(1) Repealing the automatic remission of civil penalties by
striking the last sentence of subsection 234A.b.(2) which reads: ``In
implementing this section, the Secretary shall determine by rule
whether nonprofit educational institutions should receive automatic
remission of any penalty under this section.'';
(2) Deleting exemptions provided to seven institutions (including
their subcontractors and suppliers) for activities at certain
facilities by deleting existing subsection 234A.d. and substituting a
new subsection 234A.d.(1) in which the total amount of civil penalties
for violations under subsection 234A.a. of the AEA by any not-for-
profit contractor, subcontractor, or supplier may not exceed the total
amount of fees paid within any 1-year period (as determined by the
Secretary) under the contract; and
(3) Adding a new section 234A.d.(2) that defines the term ``not-
for-profit'' to mean that ``no part of the net earnings of the
contractor, subcontractor, or supplier inures to the benefit of any
natural person or for-profit artificial person.''
Finally, section 610 of EPAct 2005 included an effective date
provision at subsection 234A.c., specifying that the amendments as to
civil penalties under section 234A. shall not apply to any violation of
the AEA occurring under a contract entered into before the date of
enactment of EPAct 2005, which was August 8, 2005.
II. Discussion of the Proposed Rule
Today's proposed rule would amend section 820.20 as follows:
(1) It would revise paragraph (c) to limit the exemption for seven
institutions (and their subcontractors and suppliers) from the civil
penalty provisions of Part 820 to violations occurring under contracts
entered into before the date of enactment of EPAct 2005;
(2) It would revise paragraph (d) to limit the automatic remission
of civil penalties for nonprofit educational institutions under Part
820 to violations
[[Page 19762]]
occurring under contracts entered into before the date of enactment of
EPAct 2005;
(3) It would add a new paragraph (e) to provide that, with respect
to any violation occurring under a contract entered into on or after
the date of enactment of EPAct 2005, the total amount of civil
penalties paid under Part 820 by any not-for-profit contractor,
subcontractor, or supplier may not exceed the total amount of fees paid
within the fiscal year in which the violation occurs; and
(4) It would add a new paragraph (f) to provide that a not-for-
profit contractor, subcontractor, or supplier is one for which no part
of the net earnings of the contractor, subcontractor, or supplier
inures to the benefit of any natural person or for-profit artificial
person.
To summarize, for contracts entered into with the DOE on or after
August 8, 2005, all contractors, subcontractors and suppliers would be
subject to civil penalties for violations of nuclear safety
regulations; however, not-for-profit contractors, subcontractors and
suppliers could not be assessed any such penalties greater than the
total amount of fees paid to them within the fiscal year in which the
violation occurs. For contracts entered into with DOE prior to August
8, 2005, the provisions of section 820.20 pertaining to the exemption
from civil penalties for the seven institutions (including their
subcontractors and suppliers) and the automatic remission of any civil
penalties for nonprofit educational institutions would remain
unchanged.
DOE's proposed amendments to section 820.20 are intended to
effectuate section 610 of EPAct 2005. The following aspects of today's
proposal are discussed to facilitate a better understanding of the
proposed amendments and their implementation.
1. When a Contract Is ``Entered Into'' for Purposes of Section 820.20
In many cases, it is a simple matter to determine when a contract
is entered into: this occurs when the contractor and the DOE
contracting officer have both signed and executed the contract.
Further, for purposes of section 820.20, DOE proposes to consider that
contractual arrangements between the DOE contractor and its
subcontractors and suppliers relate back to the date on which the
contract was entered into between the prime contractor and DOE.
In some cases, however, a contract may include an option for
renewal of the contract beyond the base period or DOE may decide to
extend the contract, raising a question as to when the contract is
``entered into.'' In a case where a contract was competed with an
option to renew, DOE proposes that, if it exercises its option, the
contract retains the same ``entered into'' date as the initially
competed contract for purposes of section 820.20. In a case where DOE
decides to extend a contract pursuant to the applicable provisions of
the Federal Acquisition Regulation and the Department of Energy
Acquisition Regulation (such as a management and operating contract
that does not contain a competitively awarded option clause), DOE
proposes to consider the contract ``entered into'' as of the date of
execution of the extended contract, not the initial contract, for
purposes of section 820.20. Applying this definition of when a contract
is ``entered into,'' the only institution of the seven institutions
that is still exempted from civil penalties under section 234A. of the
AEA is the University of California for operation of the Lawrence
Berkeley National Laboratory. The University of California was awarded
the contract to continue to operate the Lawrence Berkeley National
Laboratory following a competition. The contract was entered into and
performance of work under this new contract began on June 1, 2005.
2. What Subcontractors and Suppliers are Entitled to the Exemption From
Civil Penalties
Prior to the passage of EPAct 2005, each of seven institutions
``and any subcontractors or suppliers thereto,'' even if they were for-
profit subcontractors or suppliers, were exempted from civil penalties
under section 234A.d. of the AEA. In contrast, amended section
234A.d.(1) provides a cap on civil penalties only ``in the case of any
not-for-profit contractor, subcontractor, or supplier.'' In sum, under
prior law any subcontractor or supplier entity associated with one of
the seven institutions under contract to the Department was entitled to
the exemption from civil penalties to the same extent as the
institution for which it was a subcontractor or supplier. Under current
law, each contractor, subcontractor, or supplier must itself qualify as
a ``not-for-profit,'' as defined at section 234A.d.(2), in order to
qualify for the limitation on civil penalties; the exemption from civil
penalties continues to apply in the limited case of any subcontractor
or supplier to one of the seven institutions (prime contractor) that
currently is under a contract with DOE that was entered into before
August 8, 2005.
DOE considers that contractual arrangements between a DOE
contractor and its subcontractors and suppliers relate back to the date
on which the contract was ``entered into'' between the prime contractor
and DOE. To further clarify, there are at present three potential
categories of subcontractors and suppliers with entitlement, or lack of
entitlement, to the exemption from civil penalties under the new
statutory scheme as described herein.
First, there are subcontractors and suppliers that retain the
entitlement to the exemption from civil penalties for violations
occurring under contracts with DOE entered into prior to August 8,
2005, because they were under subcontract with one of the seven
institutions at section 234A.d.(1) through (7) of the AEA before August
8, 2005, and they remain under those same subcontracts. As noted above,
there is only one of the seven institutions that has a contract with
DOE that was entered into prior to August 8, 2005--the University of
California for the operation of the Lawrence Berkeley National
Laboratory. Accordingly, only subcontractors and suppliers of the
University of California performing activities associated with the
Lawrence Berkeley National Laboratory, even if they are for-profit
entities, retain the entitlement to exemption from civil penalties
while under this prime contract.
Second, there are cases where subcontractors and suppliers entered
into their subcontracts with one of the seven institutions before
August 8, 2005, and, although one of the seven institutions is no
longer the prime contractor, the subcontractor or supplier is
continuing the same work under the same subcontract. In this case, DOE
does not consider the subcontractor or supplier to be entitled to the
exemption from civil penalties, as they are no longer under contract
with one of the seven institutions named at section 234A.d.(1) through
(7) of the AEA.
The third category of subcontractors and suppliers are those that
entered into subcontracts with a prime contractor to DOE on or after
August 8, 2005. Those subcontractors and suppliers are not entitled to
the exemption for civil penalties. They may be entitled to the cap or
limitation on civil penalties under the new law if, and only if, they
individually qualify as a ``not-for-profit'' institution as defined at
section 234A.d.(2).
3. How DOE Would Determine the ``1-Year Period'' To Calculate the
Limitation on Civil Penalties for Not-For-Profit Entities
Section 610 of EPAct 2005 provides that, for violations of nuclear
safety requirements occurring under a contract
[[Page 19763]]
entered into on or after August 8, 2005, any civil penalty assessed
against a not-for-profit contractor, subcontractor, or supplier must be
capped at the total amount of fees paid within any 1-year period (as
determined by the Secretary of Energy) under the contract under which
the violation occurs. There are several ways in which DOE could
determine what constitutes the relevant ``1-year period.'' This could
be interpreted as the fees paid in the 1-year period from the date of
contract award, or the fees paid during the calendar year, or the fees
paid during the fiscal year. DOE proposes, consistent with other DOE
regulations (e.g., 10 CFR 851.5 (d)), to interpret ``the total amount
of fees paid within any 1-year period'' as the total amount of fees
paid by DOE to the ``not-for-profit'' entity in the U.S. Government
fiscal year (i.e., October 1 through September 30) during which the
violation(s) occurs for which a civil penalty is assessed.
4. How DOE Would Determine the ``Total Amount of Fees Paid'' To
Calculate the Limitation on Civil Penalties for Not-For-Profit Entities
There are different ways in which DOE could determine what
constitutes the ``total amount of fees paid'' to a not-for-profit
contractor within the 1-year period discussed in section 3. For
example, the total fees paid under section 820.20(e) could be
calculated exclusive of any civil penalties, reduction in fees, or
subsequent adjustments to fee that might be imposed on the contractor
under this or other regulations, such as those involving violations of
DOE regulations relating to classified information security, codified
at 10 CFR Part 824, or worker safety and health, codified at 10 CFR
Part 851. Alternatively, the total fees paid could be calculated
inclusive of any civil penalties, reduction in fees, or subsequent
adjustments to fee, that might be imposed on the contractor under this
or other regulations. In other words, DOE must determine whether the
``total amount of fees paid'' should reflect the fee the contractor
earns in the 1-year period based on its performance of the contract
work scope with or without any penalties, reductions in fee, or
subsequent adjustments to fee.
Current DOE standard contract clauses that address fee reductions
for non-compliance with applicable regulations (e.g., 48 CFR 952.204-
76, ``Conditional payment of fee or profit--safeguarding restricted
data and other classified information'' and 48 CFR 952.223-77,
``Conditional payment of fee or profit--protection of worker safety and
health'') provide that ``[u]nder this clause, the total amount of fee
or profit that is subject to reduction made in combination with any
reduction made under any other clause in the contract that provides for
a reduction to the fee or profit, shall not exceed the amount of fee or
profit that is earned by the contractor in the period established
pursuant to paragraph (b)(2)(I) of this clause [the paragraph dealing
with performance periods].'' In effect, reductions assessed against a
contractor's fee are treated cumulatively so that the total fee
reductions taken in a performance period do not exceed the amount of
fee which the contractor has earned during that period. This provision
ensures that the not-for-profit contractor never faces a situation in
which a fee reduction could exceed the actual amount of fee that it
ultimately receives in a performance period. Although civil penalties
are not assessed under a contract provision, DOE believes that they are
conceptually similar to fee reductions and that it is appropriate to
treat them in the same manner.
A cumulative calculation is consistent with the intent of section
610 of EPAct 2005 to limit civil penalties to a not-for-profit entity
to the amount it earned under the contract for the performance period,
such that the assets of the not-for-profit are not affected or depleted
beyond the fee that it earns under the contract. Consistent with this
Congressional intent and other DOE regulations, the Department proposes
to calculate the ``total amount of fees paid'' to a not-for-profit
entity based on a cumulative calculation that takes into account any
reductions in fee, civil penalties (including civil penalties under
this regulation), or subsequent adjustment to fees paid. In the case of
any subsequent adjustments to fee (i.e., any adjustments to fee that
are taken after the fee has been paid), DOE would reassess the penalty
amount consistent with the subsequent change in the fee paid. This
reassessment would be necessary to ensure that the not-for-profit
entity does not pay more in civil penalties than the fee paid in a 1-
year performance period.
5. Repeal of the Automatic Remission of Civil Penalties
Section 610 of EPAct 2005 includes a provision, entitled ``Repeal
of Automatic Remission,'' that eliminates from section 234A.b.(2) of
the AEA the sentence that directed the Secretary to determine by rule
whether nonprofit educational institutions should receive automatic
remission of any civil monetary penalty for violations of DOE nuclear
safety regulations. DOE interprets this amendment as repealing DOE's
authority to grant an automatic remission of any civil penalty payments
for ``nonprofit educational institutions'' considered ``nonprofit''
under the United States Internal Revenue Code. In addition to the title
of section 610(a), (``Repeal of Automatic Remission''), the amendments
to section 234A. reveal a clear intent to repeal DOE's authority to
grant automatic remission of civil penalties under this section.
Congress removed the exemption for the seven institutions and, thus,
subjected all contractors (including their subcontractors and
suppliers) to civil penalties, and capped the total amount of civil
penalties paid by any ``not-for-profit'' contractor at the total amount
of fees paid within a 1-year period. Because automatic remission of
civil penalties would be inconsistent with this amended statutory
scheme, DOE interprets the amendment striking the last sentence in
section 234A.b.(2) of the AEA to be a repeal of DOE's authority to
provide automatic remission of civil penalties under the statute.
Accordingly, DOE proposes to revise section 820.20 to eliminate the
provision for automatic remission of civil penalties for contracts
entered into on or after August 8, 2005.
6. A ``Not-For-Profit'' Contractor Under the Section 610 of EPAct 2005
is not the Same as a ``Nonprofit Educational Institution''
Section 610 of EPAct 2005 amends section 234A.d. of the AEA to
define ``not-for-profit'' to mean that no part of the net earnings of
the contractor, subcontractor, or supplier inures to the benefit of any
natural person or for-profit artificial person. DOE proposes to adopt
that definition in a new paragraph (f) of the amended section 820.20
for violations occurring under contracts entered into on or after
August 8, 2005. DOE notes that the definition of a ``not-for-profit''
contractor in EPAct 2005 is different from the definition of
``nonprofit educational institutions'' in the current section 820.20(d)
(i.e., any educational institution that is considered nonprofit under
the United States Internal Revenue Code). Consequently, under today's
proposed rule a contractor, subcontractor and supplier previously
entitled to an automatic remission of civil penalties if qualified as a
``nonprofit educational institution'' under section 820.20(d) may or
may not qualify as a ``not-for-profit'' contractor, subcontractor or
supplier for purposes of the limitation on civil penalties provision
under the proposed section 820.20(f).
[[Page 19764]]
III. Public Comment Procedures
Interested persons are invited to participate in this proceeding by
submitting data, views, or arguments. Written comments should be
submitted to the address, and in the form, indicated in the ADDRESSES
section of this notice of proposed rulemaking. To help DOE review the
comments, interested persons are asked to refer to specific proposed
rule provisions, if possible.
If you submit information that you believe to be exempt by law from
public disclosure, you should submit one complete copy, as well as one
copy from which the information claimed to be exempt by law from public
disclosure has been deleted. DOE is responsible for the final
determination with regard to disclosure or nondisclosure of the
information and for treating it accordingly under the DOE Freedom of
Information regulations at 10 CFR 1004.11.
DOE has determined that this rulemaking does not raise the kinds of
substantial issues or impacts that, pursuant to 42 U.S.C. 7191, would
require DOE to provide an opportunity for oral presentation of views,
data and arguments. Therefore, DOE has not scheduled a public hearing
on these proposed amendments to Part 820.
IV. Regulatory Review
A. Executive Order 12866
This notice of proposed rulemaking has been determined to not be a
significant regulatory action under Executive Order 12866, ``Regulatory
Planning and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this
notice of proposed rulemaking was not subject to review by the Office
of Information and Regulatory Affairs of the Office of Management and
Budget (OMB).
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. As required
by Executive Order 13272, ``Proper Consideration of Small Entities in
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published
procedures and policies on February 19, 2003, to ensure that the
potential impacts of its rules on small entities are properly
considered during the rulemaking process (68 FR 7990). DOE has made its
procedures and policies available on the Office of the General
Counsel's Web site: http://www.gc.doe.gov.
DOE has reviewed this proposed rule under the provisions of the
Regulatory Flexibility Act and the procedures and policies published on
February 19, 2003. The proposed rule would amend DOE's Procedural Rules
for DOE Nuclear Activities to incorporate statutory changes made by
EPAct 2005. The proposed amendments to section 820.20 are changes
required to conform DOE's regulations to the new statutory provisions.
The changes affect the seven institutions named in AEA section 234A.d.
prior to amendment, which are not small entities, and their
subcontractors and suppliers, which may or may not be small entities.
While the amended Part 820 would expose small entities that are
subcontractors and suppliers to potential liability for civil
penalties, DOE does not expect that a substantial number of these
entities will violate a DOE nuclear safety requirement, a DOE
Compliance Order, or a DOE nuclear safety program, plan, or other
provision, resulting in the imposition of a civil penalty. On the basis
of the foregoing, DOE certifies that today's proposed rule would not
have a significant economic impact on a substantial number of small
entities. Accordingly, DOE has not prepared a regulatory flexibility
analysis for this rulemaking. DOE's certification and supporting
statement of factual basis will be provided to the Chief Counsel for
Advocacy of the Small Business Administration pursuant to 5 U.S.C.
605(b).
C. Paperwork Reduction Act
This proposed rule would not impose new information or record
keeping requirements. Accordingly, OMB clearance is not required under
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
D. National Environmental Policy Act
DOE has determined that this proposed rule is covered under the
Categorical Exclusion in DOE's National Environmental Policy Act
regulations at paragraph A.5 of Appendix A to Subpart D, 10 CFR Part
1021, which applies to rulemaking that interprets or amends an existing
rule or regulation without changing the environmental effect of the
rule or regulation that is being amended. The proposed rule would amend
DOE's regulations on civil penalties with respect to certain DOE
contractors, subcontractors and suppliers in order to incorporate
changes made to the AEA by section 610 of EPAct 2005. These proposed
amendments are procedural and would not change the environmental effect
of section 820.20. Accordingly, neither an environmental assessment nor
an environmental impact statement is required.
E. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally
requires Federal agencies to examine closely the impacts of regulatory
actions on State, local, and tribal governments. Subsection 101(5) of
title I of that law defines a Federal intergovernmental mandate to
include any regulation that would impose upon State, local, or tribal
governments an enforceable duty, except a condition of Federal
assistance or a duty arising from participating in a voluntary federal
program. Section 201 of title II of that law requires each Federal
agency to assess the effects of Federal regulatory actions on State,
local, and tribal governments, in the aggregate, or to the private
sector, ``other than to the extent that such regulations incorporate
requirements specifically set forth in law'' (2 U.S.C. 1531, emphasis
added). Section 202 of that title requires a Federal agency to perform
a detailed assessment of the anticipated costs and benefits of any rule
that includes a Federal mandate which may result in costs to State,
local, or tribal governments, or to the private sector, of $100 million
or more (adjusted annually for inflation) in any 1 year (2 U.S.C.
1532). Section 204 of that title requires each agency that proposes a
rule containing a significant Federal intergovernmental mandate to
develop an effective process for obtaining meaningful and timely input
from elected officers of State, local, and tribal governments (2 U.S.C.
1534).
This proposed rule merely incorporates requirements specifically
set forth in section 610 of EPAct 2005 and, thus, is exempt from the
requirement to assess the effects of a Federal regulatory action on
State, local, and tribal governments (2 U.S.C. 1531).
F. Treasury and General Government Appropriations Act, 1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any proposed rule that may affect family
well being. While this proposed rule would apply to individuals who may
be members of a family, the rule would not have any impact on the
autonomy or integrity of the family as an institution. Accordingly, DOE
has concluded that it
[[Page 19765]]
is not necessary to prepare a Family Policymaking Assessment.
G. Executive Order 13132
Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 1999)
imposes certain requirements on agencies formulating and implementing
policies or regulations that preempt State law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the States and carefully assess the
necessity for such actions. DOE has examined this proposed rule and has
determined that it would not preempt State law and would not have a
substantial direct effect on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government. No further
action is required by Executive Order 13132.
H. Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by section 3(a), section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulations in light of applicable standards in
section 3(a) and section 3(b) to determine whether they are met or it
is unreasonable to meet one or more of them. DOE has completed the
required review and determined that, to the extent permitted by law,
this proposed rule meets the relevant standards of Executive Order
12988.
I. Treasury and General Government Appropriations Act, 2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516 note) provides for agencies to review most disseminations
of information to the public under guidelines established by each
agency pursuant to general guidelines issued by OMB. OMB's guidelines
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed
today's notice under the OMB and DOE guidelines and has concluded that
it is consistent with applicable policies in those guidelines.
J. Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001) requires Federal agencies to prepare and submit to the
Office of Information and Regulatory Affairs (OIRA) a Statement of
Energy Effects for any proposed significant energy action. A
``significant energy action'' is defined as any action by an agency
that promulgated or is expected to lead to promulgation of a final
rule, and that: (1) Is a significant regulatory action under Executive
Order 12866, or any successor order; and (2) is likely to have a
significant adverse effect on the supply, distribution, or use of
energy, or (3) is designated by the Administrator of OIRA as a
significant energy action. For any proposed significant energy action,
the agency must give a detailed statement of any adverse effects on
energy supply, distribution, or use should the proposal be implemented,
and of reasonable alternatives to the action and their expected
benefits on energy supply, distribution, and use. Today's regulatory
action has been determined to not be a significant regulatory action,
and it would not have an adverse effect on the supply, distribution, or
use of energy. Thus, today's action is not a significant energy action.
Accordingly, DOE has not prepared a Statement of Energy Effects.
K. Approval of the Office of the Secretary
The Secretary of Energy has approved the publication of this
proposed rule.
List of Subjects in 10 CFR Part 820
Administrative practice and procedure, Government contracts,
Penalties, Radiation protection.
Glenn S. Podonsky,
Chief Health, Safety and Security Officer, Office of Health, Safety
and Security.
For the reasons stated in the preamble, DOE hereby proposes to
amend Chapter III of title 10 of the Code of Federal Regulations as set
forth below:
PART 820--PROCEDURAL RULES FOR DOE NUCLEAR ACTIVITIES
1. The authority citation for part 820 continues to read as
follows:
Authority: 42 U.S.C. 2201; 2282(a); 7191; 28 U.S.C. 2461 note;
50 U.S.C. 2410.
2. Section 820.20 is amended by revising paragraphs (c) and (d) and
by adding new paragraphs (e) and (f) to read as follows:
Sec. 820.20 Purpose and scope.
* * * * *
(c) Exemptions. With respect to a violation occurring under a
contract entered into before August 8, 2005, the following contractors,
and subcontractors and suppliers to that prime contract only, are
exempt from the assessment of civil penalties under this subpart with
respect to the activities specified below:
(1) The University of Chicago for activities associated with
Argonne National Laboratory;
(2) The University of California for activities associated with Los
Alamos National Laboratory, Lawrence Livermore National Laboratory, and
Lawrence Berkeley National Laboratory;
(3) American Telephone and Telegraph Company and its subsidiaries
for activities associated with Sandia National Laboratories;
(4) University Research Association, Inc. for activities associated
with FERMI National Laboratory;
(5) Princeton University for activities associated with Princeton
Plasma Physics Laboratory;
(6) The Associated Universities, Inc. for activities associated
with the Brookhaven National Laboratory; and
(7) Battelle Memorial Institute for activities associated with
Pacific Northwest Laboratory.
(d) Nonprofit educational institutions. With respect to a violation
occurring under a contract entered into before August 8, 2005, any
educational institution that is considered nonprofit under the United
States Internal Revenue Code shall receive automatic
[[Page 19766]]
remission of any civil penalty assessed under this part.
(e) Limitation for not-for-profits. With respect to any violation
occurring under a contract entered into on or after August 8, 2005, in
the case of any not-for-profit contractor, subcontractor, or supplier,
the total amount of civil penalties paid under this part may not exceed
the total amount of fees paid by DOE to that entity within the U.S.
Government fiscal year in which the violation occurs.
(f) Not-for-profit. For purposes of this part, a ``not-for-profit''
contractor, subcontractor, or supplier is one for which no part of the
net earnings of the contractor, subcontractor, or supplier inures to
the benefit of any natural person or for-profit artificial person.
[FR Doc. E8-7763 Filed 4-10-08; 8:45 am]
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